Judge Elaine Lu, Case 19STCV34805 2023-01-24 Tentative Ruling

On September 30, 2019, Plaintiff Ana Rubio (“Plaintiff”) filed the instant wrongful termination action against defendants Partnership Staffing Solutions dba PSS, Saputo Cheese USA, Inc. (“Saputo”), Saputo Dairy Foods USA, LLC[1], and Abel Duron (“Duron”). The complaint asserts five causes of action for (1) Gender Discrimination, (2) Sexual Harassment/Hostile Work Environment, (3) Failure to Prevent Sexual Harassment/Hostile Work Environment, (4) Retaliation, and (5) Wrongful Termination.

On December 6, 2022, Defendant Duron filed the instant motion to compel a further response to Request for Production, Set Three (“RPDs”). On January 10, 2023, Plaintiff filed an opposition. On January 17, 2023, Defendant Duron filed a reply.

Code of Civil Procedure section 2031.310 provides, in pertinent part, as follows:

(a) On receipt of a response to a demand for inspection, copying, testing, or sampling, the demanding party may move for an order compelling further response to the demand if the demanding party deems that any of the following apply:

(2) A representation of inability to comply is inadequate, incomplete, or evasive.

(1) The motion shall set forth specific facts showing good cause justifying the discovery sought by the demand.

(2) The motion shall be accompanied by a meet and confer declaration under Section 2016.040.

A party making a motion to compel further responses must do so within 45 days of service of the verified response unless the parties agree in writing and specify a later date. (CCP § 2031.310(c).) The 45-day limit is jurisdictional as the Court has no authority to grant late-filed papers. (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.) However, this 45-day limit is extended if served by mail, overnight delivery, fax, or electronically. (See CCP §§ 1010.6(a)(4), 1013.)

On September 14, 2022, Defendant Duron electronically served RPD No. 45 on Plaintiff. (Hodgkins Decl. ¶ 4, Exh. B.) On October 13, 2022, Plaintiff electronically served her response to RPD No. 45. (Hodgkins Decl. ¶ 5, Exh. C.) On October 18, 2022, Defendant sent a meet and confer letter regarding Plaintiff’s response to RPD No. 45. (Hodgkins Decl. ¶ 9, Exh. H.) On October 25, 2022, November 17, 2022, and November 18, 2022, the Court conducted an IDC regarding the parties’ discovery disputes. (Hodgkins Decl. ¶ 10-16, Exhs. I-L.) On November 21, 2022, Plaintiff electronically served her supplemental response to RPD No. 45. (Hodgkins Decl. ¶ 6, Exhs. D-E.) Thus, Defendant Duron had until December 9, 2022 to timely file the instant motion.^{^[2]} Accordingly, the instant motion filed on December 6, 2022 is timely.

Pursuant to Code of Civil Procedure section 2031.310(b)(2), a motion to compel further responses to a request for production “shall be accompanied by a meet and confer declaration under Section 2016.040.” (CCP § 2031.310(b)(2).) “A meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (CCP § 2016.040.)

Here, Defendant Duron has sufficiently met and conferred. (Hodgkins Decl. ¶¶ 9-19, Exhs. H-M.)

As a preliminary matter, the Court notes that Defendant’s separate statement is incomplete. Pursuant to the Rules of Court, “[a] separate statement is a separate document filed and served with the discovery motion that provides all the information necessary to understand each discovery request and all the responses to it that are at issue. The separate statement must be full and complete so that no person is required to review any other document in order to determine the full request and the full response. Material must not be incorporated into the separate statement by reference.” (Cal. Rules of Court, Rule 3.1345(c), [italics added].)

As noted in Defendant Duron’s separate statement and in the motion, Plaintiff provided a privilege log. (Hodgkins Decl. ¶ 6, Exh. E.) Given that the crux of Defendant Duran’s motion is that the attorney client privilege claim is unsupported, the privilege log is vital. However, the vital information included in the privilege log was not included in the separate statement as required. Thus, the Court could deny the instant motion on this ground. However, Plaintiff provided the privilege log in her opposing separate statement, and thus, the Court declines to deny the instant motion on this ground. Any party’s failure to comply with these rules in the future may result in the Court denying the motion on procedural grounds.

“All DOCUMENTS, COMMUNICATIONS, and/or emails exchanged between YOU and Idalmys Gonzalez RELATING TO the allegations of the COMPLAINT, including, without limitations, any emails from DocuSign and/or any emails from any PERSON at Pairavi Law P.C.” (RPD No. 45.)

“Objection. Responding Party objects on the grounds that this request is vague, ambiguous, uncertain, argumentative, unintelligible and/or indefinite. Responding Party objects to this request on the grounds that it is oppressive, burdensome and calculated to annoy and harass Responding Party. Responding Party objects to the extent that this request is not limited by the subject matter, time, and/or scope of the litigation. Responding Party objects to this interrogatory on the ground that it seeks disclosure of information protected by attorney-client privilege and/or that constitute attorney work product. Responding Party objects to this request on the grounds that it seeks information which is not relevant to the subject matter of the pending action and not reasonably calculated to lead to the discovery of admissible evidence. Responding Party further objects to the extent that this request invades Responding Party's right to privacy under Article 1 Section 1 of the California Constitution. Subject to the above objections Responding party is withholding all emails exchanged between Responding Party and Idalmys Gonzalez relating the allegations of the COMPLAINT, including, without limitations, any emails from DocuSign and/or any emails from any PERSON at Pairavi Law P.C.” (Supp. Response to RPD No. 45.)

“[A]ny party may obtain discovery regarding any matters, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” (CCP § 2017.010.) “[A]n implicit waiver of a party's constitutional rights encompasses only discovery directly relevant to the plaintiff's claim and essential to the fair resolution of the lawsuit.” (Vinson v. Superior Court (1987) 43 Cal.3d 833, 842.) However, discovery should not be denied if the information sought has any relevance to the subject matter. Thus, while relevancy is a possible ground for an objection, it is difficult to adequately justify it. (See generally Coy v. Superior Court of Contra Costa County (1962) 58 Cal.2d 210, 217.) “These rules are applied liberally in favor of discovery, and (contrary to popular belief), fishing expeditions are permissible in some cases.” (Gonzalez v. Superior Court (1995) 33 Cal.App.4th 1539, 1546 [internal citation omitted].)

As to burden, “burden must be sustained by evidence showing the quantum of work required” and “to support an objection of oppression there must be some showing either of an intent to create an unreasonable burden or that the ultimate effect of the burden is incommensurate with the result sought.” (West Pico Furniture Co. of Los Angeles v. Superior Court In and For Los Angeles County (1961) 56 Cal.2d 407, 417.) Moreover, even if [discovery requests] are found to be “burdensome and oppressive,” the Court should not simply sustain the objection and thereby excuse any answer. Rather, the Court should limit the question to a reasonable scope. (Borse v. Superior Court (Southern Pac. Co.) (1970) 7 Cal.App.3d 286, 289.)

Here, Plaintiff’s objections on the grounds of vagueness and indefiniteness are unwarranted. The request clearly identifies that it is seeking documents between Plaintiff and Plaintiff’s agents regarding the instant action and Plaintiff’s daughter Idalmys Gonzalez. Though RPD No. 45 does not itself specify a time period, it clearly seeks documents relating to the complaint, and the complaint provides the relevant time period of April 2017 onwards. The request is clearly relevant as it directly relates to the allegations of the complaint. Finally, as to burden, Plaintiff provides no quantum of work or indication as to how the request is so burdensome that Plaintiff cannot reasonably respond.

The right of privacy in the California Constitution (art. I, § 1), “protects the individual's reasonable expectation of privacy against a serious invasion.” (Puerto v. Superior Court (2008) 158 Cal.App.4th 1242, 1250 [italics in original]; See Williams v. Superior Court (2017) 3 Cal.5th 531, 552 [“In Hill, we established a framework for evaluating potential invasions of privacy. The party asserting a privacy right must establish a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious. The party seeking information may raise in response whatever legitimate and important countervailing interests disclosure serves, while the party seeking protection may identify feasible alternatives that serve the same interests or protective measures that would diminish the loss of privacy. A court must then balance these competing considerations.”].)

As the Supreme Court has “previously observed, the right of privacy extends to sexual relations (Vinson v. Superior Court, supra, 43 Cal.3d at p. 841, 239) and medical records (Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 41.).” (John B. v. Superior Court (2006) 38 Cal.4th 1177, 1198.) Similarly, the constitutional right to freedom of association requires protection of a person’s membership in associations, whether they pertain to religious, political, economic, or even purely social matters. (Britt v. Superior Court (1978) 20 Cal.3d 844, 852; see also Pacific-Union Club v. Superior Court (1991) 232 Cal.App.3d 60, 71.)

In establishing a privacy interest “the burden [is] on the party asserting a privacy interest to establish its extent and the seriousness of the prospective invasion, and against that showing must weigh the countervailing interests the opposing party identifies, as Hill requires.” (Williams, supra, 3 Cal.5th 531, 557.) “Only obvious invasions of interests fundamental to personal autonomy must be supported by a compelling interest.” (Ibid.)

Here, Plaintiff has failed to demonstrate how the documents sought would violate Plaintiff’s privacy. The request itself does not indicate that it is inherently seeking documents in which Plaintiff would have a reasonable expectation of privacy or that disclosure would result in a serious invasion. Moreover, with respect to the documents identified in Plaintiff’s privilege log, the privilege log does not identify privacy as a basis for objection. Accordingly, Plaintiff fails to substantiate the privacy objection.

“In general, when a party asserts the attorney-client privilege, that party has the burden of showing the preliminary facts necessary to support the privilege.” (Venture Law Group v. Superior Court (2004) 118 Cal.App.4th 96, 102.) “The party asserting the privilege need only present facts which ‘support a prima facie claim of privilege.” (OXY Resources California LLC v. Superior Court (2004) 115 Cal.App.4th 874, 894.) “After this burden is met, or where there is no dispute concerning the preliminary facts, the burden shifts to the party opposing the privilege to show either the claimed privilege does not apply, an exception exists, or there has been an express or implied waiver.” (Venture Law Group, supra, 118 Cal.App.4th at p.102.) “Because a court may order disclosure of information in order to determine whether it is protected by the work product doctrine, but may not order its disclosure to determine if it is subject to the attorney-client privilege, a court should without requiring disclosure first determine if the information is subject to the attorney-client privilege.” (Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 737, Fn. 4.)

Here, Plaintiff clearly identifies a prima facie claim of attorney client privilege. The request specifically identifies documents from Plaintiff’s counsel – Pairavi Law P.C. – involving the instant action. Moreover, the privilege log clearly denotes that the documents sought involve matter directly related to the instant action. Thus, the burden is on Defendant Duron to show that Plaintiff has waived such privilege.

“[T]he right of any person to claim a privilege provided by Section 954 (lawyer-client privilege), … is waived with respect to a communication protected by the privilege if any holder of the privilege, without coercion, has disclosed a significant part of the communication or has consented to disclosure made by anyone. Consent to disclosure is manifested by any statement or other conduct of the holder of the privilege indicating consent to the disclosure, including failure to claim the privilege in any proceeding in which the holder has legal standing and the opportunity to claim the privilege.” (Evid. Code, § 912(a).)

Defendant Duron contends that Plaintiff waived the attorney-client privilege by virtue of sharing the confidential communications with Idalmys Gonzalez. At her deposition, Idalmys Gonzalez testified in relevant part that she is Plaintiff’s youngest daughter and lives with Plaintiff. (Hodgkins Decl. ¶ 3, Exh. A [Idalmys Depo. at p.13:13-23].) Idalmys Gonzalez does not have a lawyer and has only met Plaintiff’s attorney’s once when she went to go file a claim. (Hodgkins Decl. ¶ 3, Exh. A [Idalmys Depo. at p.15:9-13].) Idalmys Gonzalez testified that Plaintiff receives some of the documents from her attorney by email and that Plaintiff’s Counsel would send emails to both Idalmys Gonzalez and Plaintiff so that “[Idalmys Gonzalez] could give it to [Plaintiff] so that [Plaintiff] c[ould] sign it.” (Hodgkins Decl. ¶ 3, Exh. A [Idalmys Depo. at pp.16:10-17:1].) Defendant Duron contends that because Plaintiff’s Counsel sent documents regarding the instant action to Idalmys Gonzalez, Plaintiff has waived the attorney-client privilege as to those documents shared with this third party. The Court disagrees and finds that Defendant Duron has failed to meet his burden in showing that Plaintiff waived attorney-client privilege.

Though “there is no parent-child privilege in this state”, (De Los Santos v. Superior Court (1980) 27 Cal.3d 677, 683), the communications with Idalmys Gonzalez are nonetheless privileged because they were reasonably necessary to accomplish the purpose for which Plaintiff’s Counsel was consulted – i.e., the instant litigation. As noted by statute, “[a] disclosure in confidence of a communication that is protected by a privilege provided by Section 954 (lawyer-client privilege), …when disclosure is reasonably necessary for the accomplishment of the purpose for which the lawyer, … was consulted, is not a waiver of the privilege.” (Evid. Code, § 912(d).) “‘For example, where a confidential communication from a client is relayed by his attorney to a physician, appraiser, or other expert in order to obtain that person's assistance so that the attorney will better be able to advise his client, the disclosure is not a waiver of the privilege, even though the disclosure is made with the client's knowledge and consent.’ [Citation.]” (McKesson HBOC, Inc. v. Superior Court (2004) 115 Cal.App.4th 1229, 1236–1237.) “[W]e construe section 952 to mean that attorney-client communications in the presence of, or disclosed to, clerks, secretaries, interpreters, physicians, spouses, parents, business associates, or joint clients, when made to further the interest of the client or when reasonably necessary for transmission or accomplishment of the purpose of the consultation, remain privileged.” (Insurance Co. of North America v. Superior Court (1980) 108 Cal.App.3d 758, 771.)

As the Supreme Court has explained, “[i]t is no less the client's communication to the attorney when it is given by the client to an agent for transmission to the attorney, and it is immaterial whether the agent is the agent of the attorney, the client, or both. ‘(T)he client's freedom of communication requires a liberty of employing other means than his own personal action. The privilege of confidence would be a vain one unless its exercise could be thus delegated. A communication, then, by any form of agency employed or set in motion by the client is within the privilege.” (City & County of San Francisco v. Superior Court In and For City and County of San Francisco (1951) 37 Cal.2d 227, 236–237.)

Here, Idalmys Gonzalez noted at her deposition, Plaintiff’s Counsel sent communications to her so that Plaintiff could use her phone to sign documents. This testimony reflects a delegation of handling the technical aspect of electronically signing attorney-client documents. Consistent with this testimony, Plaintiff’s Counsel noted during the meet and confer leading up to this motion that “[Plaintiff] is not very tech savvy and sometimes through her daughter [Plaintiff] communicates with our office.” (Hodgkins Decl. ¶ Exh. J.) This evidence clearly establishes that Idalmys Gonzalez was acting as Plaintiff’s agent in communicating with Plaintiff’s Counsel. (Church Mutual Ins. Co., S.I. v. GuideOne Specialty Mutual Ins. Co. (2021) 72 Cal.App.5th 1042, 1061 [“Agency exists when a principal engages an agent to act on the principal's behalf and subject to its control.”].) As noted above, the burden is on Defendant Duron to show waiver. Defendant Duron has failed to do so. Specifically, Defendant Duron fails to show that Idalmys Gonzalez was not acting as Plaintiff’s agent.

Nor has Defendant introduced evidence that the communication was not reasonably necessary. Defendant merely argues that Plaintiff could use Facebook, and thus, the communication through Idalmys Gonzalez was not reasonably necessary. (Hodgkins Decl. ¶ 7, Exh. F [Plaintiff’s Depo., p.22 – 23], and ¶ 8, Exh. G [Plaintiff’s Depo., p.156 – 157].) The mere ability to use basic functions of Facebook does not necessarily show that Plaintiff is “tech savvy” or that it was unreasonable for Plaintiff to delegate to or request assistance from her daughter Idalmys Gonzalez setting up the documents for Plaintiff to sign.

Accordingly, Plaintiff’s objections based on attorney client privilege and attorney work product are sustained.

A code-compliant response to a request for production consists of any of the following: (1) a statement that the party will comply, (2) a representation that the party lacks the ability to comply, or (3) an objection. (CCP § 2031.210.) A statement that the party will comply must state that the RPD “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, [italics added].) If an objection is made the responding party must “[i]dentify with particularity any document, tangible thing, land, or electronically stored information falling within any category of item in the demand to which an objection is being made.” (CCP § 2031.240(b)(1).) Moreover, the objection must set forth the extent of the objection. (CCP § 2031.240(b)(2).)

Here, Plaintiff’s supplemental response is solely an objection. However, as discussed above, the majority of Plaintiff’s objections were unsubstantiated. The Court has sustained only the attorney-client privilege and for attorney work product objections. Moreover, the objection for attorney-client privilege specifically identifies only sixteen documents. There is no indication in the response whether these sixteen documents consist of all or merely some of the responsive documents. Plaintiff’s supplemental response is insufficient because an objection must “[s]et forth clearly the extent of, and the specific ground for, the objection.” (CCP § 2031.240(b)(2) [italics added].)

Accordingly, Plaintiff must identify the extent of her objection in a further response. To the extent that responsive documents exist apart from those listed in the privilege log, Plaintiff must produce those documents.

Defendant Duron seeks sanctions of $4,410.00 against Plaintiff’s attorney of record. Defendant Duron’s Counsel argues that sanctions are necessary to reimburse Duron for 2.4 hours appearing at informal discovery conferences, the 8 hours spent preparing the instant motion, the 4 hours anticipated in reviewing and responding to Plaintiff’s opposition, and an anticipated 2 hours arguing the instant motion at a billed hourly rate of $250. (Hodgkins Decl. ¶ 21.) Defendant Duran also seeks filing fees of $60. (Hodgkins Decl. ¶ 21.)

For a motion to compel further responses, “[t]he court shall impose a monetary sanction … against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to [request for production], 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 § 2031.300(c), [italics added].) Further, it is an abuse of discovery to make an evasive response or make unsubstantiated objections to discovery. (CCP § 2023.010(e)-(f).)

Given the mixed outcome of the Court’s ruling, and given that Plaintiff’s objection on attorney client privilege was substantiated, the Court finds that the imposition of sanctions would be unjust. Accordingly, Defendant Duron’s request for sanctions is DENIED.

Based on the foregoing, Defendant Abel Duron’s motion to compel further responses from Plaintiff Ana Rubio to Request for Production of Documents, Set THREE is GRANTED IN PART.

Within twenty (20) days of notice of this order, Plaintiff is to provide a further, verified, code compliant response to Request 45 without objection except as to attorney-client privilege and work product privilege objection.

[1] On June 10, 2020, Plaintiff dismissed the entire complaint as to Saputo Dairy Foods USA, LLC without prejudice.

[2] December 7, 2022 which is exactly 47 days from service of the responses to the RPDs – as it was served electronically – was a Saturday– and thus a court holiday, extending the deadline to file the instant motion to December 9, 2022. (CCP §§ 12-12(c).)

Superior Court of California

County of Los Angeles

Department 26