Judge: David A. Rosen, Case: 21STCV11367, Date: 2022-08-26 Tentative Ruling

Case Number: 21STCV11367    Hearing Date: August 26, 2022    Dept: E

Hearing Date: 08/26/2022 – 10:00am
Case No: 21STCV11367
Trial Date: 5-22-2023
Case Name: JANE DOE v. GLENDALE UNIFIED SCHOOL DISTRICT, a public school district; DOES 1-40

TENTATIVE RULING ON MOTION TO COMPEL FURTHER RESPONSES TO REQUEST FOR PRODUCTION

Moving Party: Plaintiff, Jane Doe
Responding Party: No Opposition

No Opposition submitted. Reply submitted

Proof of Service Timely Filed (CRC Rule 3.1300): ok
16/21 Court Days Lapsed (CCP 1005(b)): ok
Proper Address: ok

RELIEF REQUESTED
Plaintiff moves for an order compelling further responses from Defendant Glendale Unified School District (“GUSD”) to Plaintiff’s Requests for Production, Set One, numbers 1, 3, 5, 23, 24, 27, 32, and 33 and monetary sanctions of $2,560 pursuant to CCP §2031.310(h).

 

PROCEDURAL

45 Days
Unless notice of this motion is given within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the demanding party and the responding party have agreed in writing, the demanding party waives any right to compel a further response to the demand. (CCP §2031.310(c).)

The instant motion appears to be timely based on the parties’ agreement to allow Plaintiff to file the instant motion at a later date. In Exhibit 10 of the Declaration of Reagan, Defendant’s counsel agreed to a two-week extension after the IDC to file this motion. The IDC was initially scheduled for June 28, 2022; however, the IDC was taken off calendar when this case was transferred to the current department. (Decl. Reagan ¶9- 10.) Since this Court does not require IDCs, Plaintiff filed the instant motion to compel within two weeks of the previous July 8, 2022, deadline since a new IDC was never set and the two week extension from the IDC no longer appeared applicable since it was taken off calendar. The instant motion was filed on July 22, 2022, which is exactly two weeks from July 8, 2022 and thus appears timely.

Meet and Confer
“The motion shall be accompanied by a meet and confer declaration under Section 2016.040.” (CCP §2031.310(b)(2).)

Moving part met and conferred. (Decl. Reagan ¶6.)

BACKGROUND
Plaintiff, Jane Doe, is currently 57 years old and alleges in the First Amended Complaint (“FAC”) that she was the victim of childhood sexual assault, abuse, harassment, and other misconduct during the late 1970s and early 1980s by her teacher, Martin Pappalardo. Pappalardo was a former employee of Glendale Unified School District, and Clark Junior High School was a junior high school operated by and under the control of GUSD. Plaintiff met Pappalardo when she was in the 9th grade at Clark Junior High School. Plaintiff alleges the abuse began in 9th grade but continued into the 10th grade after Plaintiff graduated junior high school when Pappalardo invited Plaintiff to the Junior High campus under the guise of working as his assistant coach for the volleyball team. Plaintiff alleges she knew virtually nothing about volleyball, and the Junior High’s principal signed off on this arrangement.

Plaintiff alleged the following causes of action: (1) Negligent Hiring, Supervision & Retention of an Unfit Employee, (2) Breach of Mandatory Duty: Failure to Report Suspected Child Abuse (Government Code Section 815.6), (3) Negligent Failure to Warn, Train, or Educate, (4) Negligent Supervision of a Minor, and (5) Negligence.

PRELIMINARY MATTERS
Waiving Objections
Within 30 days after service of a demand for inspection, copying, testing, or sampling, the party to whom the demand is directed shall serve the original of the response to it on the party making the demand, and a copy of the response on all other parties who have appeared in the action, unless on motion of the party making the demand, the court has shortened the time for response, or unless on motion of the party to whom the demand has been directed, the court has extended the time for response. (CCP §2031.260(a).)

If a party to whom a demand for inspection, copying, testing, or sampling is directed fails to serve a timely response to it, the following rules shall apply:

(a) The party to whom the demand for inspection, copying, testing, or sampling is directed waives any objection to the demand, including one based on privilege or on the protection for work product under Chapter 4 (commencing with Section 2018.010). The court, on motion, may relieve that party from this waiver on its determination that both of the following conditions are satisfied:

            (1) The party has subsequently served a response that is in substantial compliance with Sections 2031.210, 2031.220, 2031.230, 2031.240, and 2031.280.

            (2) The party’s failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect.

Plaintiff propounded Requests for Production of Documents, Set One, to Defendant on January 25, 2022, and responses to those requests were due by February 28, 2022. (Decl. Reagan ¶2-3.) On March 7, 2022, Plaintiff emailed Defendant stating that Plaintiff has not received responses and no extensions were requested. Plaintiff also asked when the responses and documents would be expected. (Decl. Reagan ¶3, Ex. 2.) Defendant responded to this email asking for a three-week extension and Plaintiff responded by granting the three-week extension provided that verified responses had no objections, and Plaintiff stated that since no extensions were previously requested or granted and no responses were received by the February 28, 2022 deadline, all objections were waived under the code.

Defendant eventually provided initial responses and further supplemental responses; however, as seen in Plaintiff’s Separate Statement, the requests at issue in this motion provided responses with objections. Since Defendant initially responded untimely and Plaintiff did not grant an extension until after Defendant’s untimely responses, Defendant has waived its objections. Further, Defendant has not filed a motion for waiver of objections to be relieved from this waiver.

Protective Order
After Defendant provided supplemental responses, Plaintiff informed Defendant that the supplemental responses still contained objections and that those objections were without merit and already waived. Defendant’s counsel responded by asking Plaintiff to stipulate to a protective order to preserve Defendant’s privacy rights and that after the parties signed the order, Defendant would further supplement the personnel file of Defendant. (Decl. Reagan ¶8, Ex. 7.)

In this motion, Plaintiff argues that Defendant waived the right to move for a protective order when it failed to timely respond to Plaintiff’s discovery requests.  Whether Defendant waived the right to move for a protective order is not before the Court on this motion.

Diaz v. Carcamo
Plaintiff notes that Defendant argued in the informal discovery conference that these documents are not discoverable pursuant to Diaz v. Carcamo (2011) 51 Cal.4th 1148. Plaintiff argues that this case is not on point. Defendant has not made any argument based upon Diaz v. Carcamo as Defendant has not submitted an Opposition to this motion.

LEGAL STANDARD – COMPEL FURTHER – REQUESTS FOR PRODUCTION

Under §2031.210, the party to whom a demand for inspection, copying, testing, or sampling has been directed shall respond separately to each item or category of item by any of the following:

(1)¿A statement that the party will comply with the particular demand for inspection, copying, testing, or sampling by the date set for the inspection, copying, testing, or sampling pursuant to paragraph (2) of subdivision I of Section 2031.030 and any related activities.

(2)¿A representation that the party lacks the ability to comply with the demand for inspection, copying, testing, or sampling of a particular item or category of item.

(3)¿An objection to the particular demand for inspection, copying, testing, or sampling.

(CCP §2031.210(a).)

A statement that the party to whom a demand for inspection, copying, testing, or sampling has been directed will comply with the particular demand shall state that the production, inspection, copying, testing, or sampling, and related activity demanded, 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. (CCP §2031.220.)

Under Code of Civil Procedure section 2031.310, the Court may order a responding party to serve a further response to a request for production when the Court finds that any of the following apply: 

  1. A statement of compliance with the demand is incomplete; 
  1. A representation of inability to comply is inadequate, incomplete, or evasive. 
  1. An objection in the response is without merit or too general. 

 

Unlike with requests to compel further interrogatories, a moving party seeking to compel further responses for requests for production must show good cause along with satisfaction of the meet and confer requirement. (CCP§ 2031.310(b.) “Good cause” is shown when a moving party provides sufficient facts that the requests are relevant. (Kirkland v. Superior Court (2002) 95 Cal.App.4th 92, 97.)  Plaintiff has generally done so here.

ANALYSIS


REQUEST NO. 1
Martin Pappalardo complete personnel file(s).

RESPONSE TO REQUEST FOR PRODUCTION NO. 1
Objection. This request seeks to invade privacy rights, public employee privacy rights under Government Code 6254, and is unduly evasive, overboard, burdensome and without limitation as to time, scope and subject matter.

SUPPLEMENTAL RESPONSE TO REQUEST FOR PRODUCTION NO. 1
Objection. This request seeks to invade privacy rights, public employee privacy rights under Government Code 6254, and is unduly evasive, overboard, burdensome and without limitation as to time, scope and subject matter.

TENTATIVE RULING REQUEST No. 1
As already noted, the Court found that Defendant’s objections were waived since Defendant did not timely provide initial responses, and no motion for waiver of objections was filed.

Plaintiff argues that the records in request no. 1 are relevant because they are foundational evidence related to Plaintiff’s causes of action against Defendant for Negligent Hiring, Supervision, and Retention of Pappalardo. Plaintiff argues that all documents related to Defendant’s hiring, supervision, and retention should be in Pappalardo’s personnel file.

The Court finds persuasive Plaintiff’s arguments as to why the instant request is relevant, and since objections were waived by Defendant, the Court GRANTS motion to compel further responses to Request No. 1.

REQUEST NO. 3
Any performance reviews, evaluations or similar WRITINGS for Martin Pappalardo generated by YOU.

RESPONSE TO REQUEST FOR PRODUCTION NO. 3
Objection. This request seeks to invade privacy rights, public employee privacy rights under Government Code 6254, and is unduly evasive, overboard, burdensome and without limitation as to time, scope and subject matter.

SUPPLEMENTAL RESPONSE TO REQUEST FOR PRODUCTION NO. 3
Objection. This request seeks to invade privacy rights, public employee privacy rights under Government Code 6254, and is unduly evasive, overboard, burdensome and without limitation as to time, scope and subject matter.

TENTATIVE RULING REQUEST No. 3
As already noted, the Court found that Defendant’s objections were waived since Defendant did not timely provide initial responses, and no motion for waiver of objections was filed.

Plaintiff argues that the performance reviews and evaluations of Pappalardo speak directly to GUSD’s supervision of him and decision to retain him for as long as it did.

The Court finds persuasive Plaintiff’s argument as to why the instant request is relevant, and since objections were waived by Defendant, the Court GRANTS motion to compel further responses to Request No. 3.

REQUEST NO. 5
All WRITINGS that refer to, reflect or concern the reference check that YOU performed on Martin Pappalardo before YOU hired him.

RESPONSE TO REQUEST FOR PRODUCTION NO. 5
Objection. This request seeks to invade privacy rights, public employee privacy rights under Government Code 6254, and is unduly evasive, overboard, burdensome and without limitation as to time, scope and subject matter.

SUPPLEMENTAL RESPONSE TO REQUEST FOR PRODUCTION NO. 5
Objection. This request seeks to invade privacy rights, public employee privacy rights under Government Code 6254, and is unduly evasive, overboard, burdensome and without limitation as to time, scope and subject matter.

TENTATIVE RULING REQUEST NO. 5
As already noted, the Court found that Defendant’s objections were waived since Defendant did not timely provide initial responses, and no motion for waiver of objections was filed.

Plaintiff argues that the reference check that GUSD performed, or failed to perform, speaks directly to what GUSD knew about Pappalardo when they hired him and whether they should have done so at all.

The Court finds persuasive Plaintiff’s argument as to why the instant request is relevant, and since objections were waived by Defendant, the Court GRANTS motion to compel further responses to Request No. 5.

REQUEST NO. 23
All WRITINGS that identify the emergency contact person for Martin Pappalardo between 1976-1983.

RESPONSE TO REQUEST FOR PRODUCTION NO. 23
Objection. This request seeks to invade privacy rights, and is unduly evasive, overboard, burdensome and without limitation as to time, scope and subject matter.

SUPPLEMENTAL RESPONSE TO REQUEST FOR PRODUCTION NO. 23
Objection. This request seeks to invade privacy rights, public employee privacy rights under Government Code 6254, and is unduly evasive, overboard, burdensome and without limitation as to time, scope and subject matter.

TENTATIVE RULING REQUEST NO. 23
As already noted, the Court found that Defendant’s objections were waived since Defendant did not timely provide initial responses, and no motion for waiver of objections was filed.

Plaintiff argues that Pappalardo impregnated and married Plaintiff while she was still a minor and that it would be clear red flag of suspected child abuse if a teacher lists a minor student as his emergency contact. While the moving papers do not explain the relevance of “between the years 1976-1983,” the first paragraph of the FAC alleges that the misconduct occurred during the late 1970s and early 1980s.

The Court finds persuasive Plaintiff’s argument as to why the instant request is relevant, and since objections were waived by Defendant, the Court GRANTS motion to compel further responses to Request No. 23.

REQUEST NO. 24
All WRITINGS that identify the spouse of Martin Pappalardo between 1976-1983.

RESPONSE TO REQUEST FOR PRODUCTION NO. 24
Objection. This request seeks to invade privacy rights, public employee privacy rights under Government Code 6254, and is unduly evasive, overboard, burdensome and without limitation as to time, scope and subject matter.

SUPPLEMENTAL RESPONSE TO REQUEST FOR PRODUCTION NO. 24
Objection. This request seeks to invade privacy rights, public employee privacy rights under Government Code 6254, and is unduly evasive, overboard, burdensome and without limitation as to time, scope and subject matter.

TENTATIVE RULING REQUEST NO. 24
As already noted, the Court found that Defendant’s objections were waived since Defendant did not timely provide initial responses, and no motion for waiver of objections was filed.

Plaintiff argues that Pappalardo impregnated and married Plaintiff while she was still a minor and that evidence that the school district was aware that a teacher married a minor student is a clear red flag of child abuse.

The Court finds persuasive Plaintiff’s argument as to why the instant request is relevant, and since objections were waived by Defendant, the Court GRANTS motion to compel further responses to Request No. 24.

REQUEST NO. 27
All WRITINGS that indicate the different schools that Martin Pappalardo worked at during the time that he was employed by YOU.

RESPONSE TO REQUEST FOR PRODUCTION NO. 27
Objection. This request seeks to invade privacy rights, public employee privacy rights under Government Code 6254, and is unduly evasive, overboard, burdensome and without limitation as to time, scope and subject matter.

SUPPLEMENTAL RESPONSE TO REQUEST FOR PRODUCTION NO. 27
Objection. This request seeks to invade privacy rights, public employee privacy rights under Government Code 6254, and is unduly evasive, overboard, burdensome and without limitation as to time, scope and subject matter.

TENTATIVE RULING REQUEST NO. 27
As already noted, the Court found that Defendant’s objections were waived since Defendant did not timely provide initial responses, and no motion for waiver of objections was filed.

Plaintiff argues that Pappalardo worked at another school after Clark Junior High School despite numerous red flags of his sexual abuse of a minor. Plaintiff argues that documents related to Defendant GUSD’s letters of recommendation and/or failure to censure him in any way is relevant to demonstrate GUSD’s response and possible cover up of Pappalardo’s abuse.

The Court finds persuasive Plaintiff’s argument as to why the instant request is relevant, and since objections were waived by Defendant, the Court GRANTS motion to compel further responses to Request No. 27.

REQUEST NO. 32
All WRITINGS refer to, reflect or concern Martin Pappalardo leaving Clark Junior High School and securing a teaching position at another school.

RESPONSE TO REQUEST FOR PRODUCTION NO. 32
Objection. This request seeks to invade privacy rights, public employee privacy rights under Government Code 6254, and is unduly evasive, overboard, burdensome and without limitation as to time, scope and subject matter.

SUPPLEMENTAL RESPONSE TO REQUEST FOR PRODUCTION NO. 32
Objection. This request seeks to invade privacy rights, public employee privacy rights under Government Code 6254, and is unduly evasive, overboard, burdensome and without limitation as to time, scope and subject matter.

TENTATIVE RULING REQUEST NO. 32
As already noted, the Court found that Defendant’s objections were waived since Defendant did not timely provide initial responses, and no motion for waiver of objections was filed.

Plaintiff argues that Pappalardo worked at another school after Clark Junior High School despite numerous red flags of his sexual abuse of a minor. Plaintiff argues that documents related to Defendant GUSD’s letters of recommendation and/or failure to censure him in any way is relevant to demonstrate GUSD’s response and possible cover up of Pappalardo’s abuse.

The Court finds persuasive Plaintiff’s argument as to why the instant request is relevant, and since objections were waived by Defendant, the Court GRANTS motion to compel further responses to Request No. 32.

REQUEST NO. 33
All letters of recommendation provide by YOU to Martin Pappalardo and/or any school that was considering him for employment.

RESPONSE TO REQUEST FOR PRODUCTION NO. 33
Objection. This request seeks to invade privacy rights, public employee privacy rights under Government Code 6254, and is unduly evasive, overboard, burdensome and without limitation as to time, scope and subject matter.

SUPPLEMENTAL RESPONSE TO REQUEST FOR PRODUCTION NO. 33
Objection. This request seeks to invade privacy rights, public employee privacy rights under Government Code 6254, and is unduly evasive, overboard, burdensome and without limitation as to time, scope and subject matter.

TENTATIVE RULING REQUEST NO. 33
As already noted, the Court found that Defendant’s objections were waived since Defendant did not timely provide initial responses, and no motion for waiver of objections was filed.

Plaintiff argues that Pappalardo worked at another school after Clark Junior High School despite numerous red flags of his sexual abuse of a minor. Plaintiff argues that documents related to Defendant GUSD’s letters of recommendation and/or failure to censure him in any way is relevant to demonstrate GUSD’s response and possible cover up of Pappalardo’s abuse.

The Court finds persuasive Plaintiff’s argument as to why the instant request is relevant, and since objections were waived by Defendant, the Court GRANTS motion to compel further responses to Request No. 33.

RESPONSES AND PRODUCTION

N.B. Defendant is thus to provide further, code-compliant responses, under oath and without objection, to the Requests discussed above, and produce the discoverable documents within TWENTY days.

SANCTIONS
Except as provided in subdivision (j), the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further response to a demand, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (CCP §2031.310(h).)

“The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed.” (Cal. Rules of Court 3.1348(a).)

Plaintiff’s motion requests sanctions in the amount of $2,560. In Peter A. Reagan’s declaration, Reagan states that his billing rate is $500/hour and he spent 3.5 hours preparing this motion and anticipates spending 1.5 hours reviewing the Opposition, drafting a Reply, and attending the hearing on the motion. Plaintiff has also incurred a filing fee of $60 for this motion. (Decl. Reagan ¶11.)

This Court awards sanctions at a rate of $500/hour for four hours, plus the $60 filling fee. No Opposition was submitted; therefore, there will be no time awarded for reviewing an Opposition. A Reply was submitted simply noting that no Opposition was submitted.  Thus, reasonable sanctions in the amount of $2,060.00 are awarded to Plaintiff, to be paid with in 30 days by Defendant and its attorneys of record, jointly and severally.