Judge Elaine Lu, Case 19STCV41321 2023-03-09 Tentative Ruling

On November 15, 2019, plaintiff Ida Gomez Llanos (“Plaintiff”) filed the instant action against defendants Delta Air Lines, Inc. (“Delta”), Delta F-Care Retirement Trust, Delta Master Retirement Trust, Jennifer Kao (“Kao”), Pamela Paul (“Paul”), Andrea Misserian (“Misserian”), Barbara Lau (“Lau”), Ann Marie Ognovic (“Ognovic”), Sharon Redden (“Redden”), Jeffrey Weese (“Weese”), and Jake Jesse (“Jesse”). The complaint asserts ten causes of action: (1) Discrimination in Violation of the Fair Employment and Housing Act (“FEHA”)[1], (2) Harassment in Violation of FEHA, (3) Retaliation in Violation of FEHA, (4) Failure to Prevent Discrimination, Harassment, and Retaliation in Violation of FEHA, (5) Intentional Infliction of Emotional Distress (“IIED”), (6) Negligent Hiring, Supervision, and Retention, (7) Wrongful Termination in Violation of Public Policy, (8) Whistle-Blower Retaliation in Violation of Labor Code § 1102.5, (9) Breach of Express Oral Contract Not to Terminate Employment without Good Cause, and (10) Breach of Implied-in-Fact Contract Not to Terminate Employment without Good Cause.[2]

On September 21, 2021, Plaintiff filed a stipulation to dismiss defendants Delta F-Care Retirement Trust and Delta Master Retirement Trust without prejudice and to dismiss defendants Andrea Misserian, Jeffrey Weese and Jake Jesse with prejudice. On July 6, 2022, Plaintiff orally moved to dismiss Ann Marie Ognovic from the complaint, which the Court granted. (Minute Order 7/6/22.)

On February 3, 2023, Defendants Delta, Kao, Paul, Lau, and Redden (collectively “Defendants”) filed the instant motion to compel further deposition testimony of Daniel Henderson, Esq. (“Henderson”). On February 21, 2023, Plaintiff filed an opposition. On February 24, 2023, Defendants filed a reply.

Plaintiff has been an outstanding flight attendant at Delta throughout her 56 years of employment, receiving numerous awards. (Complaint ¶¶ 11-12.) Plaintiff was Delta’s number one flight attendant in Los Angeles and fifth in the company at age 78. (Id. ¶ 14(a).) As the most senior flight attendant, Plaintiff earned coveted work-related privileges that other employees coveted, such as the first right to choose her flight routes and to take on additional flights for extra work hours. (Id. ¶ 14(b).) This in turn created resentment by other flight attendants who would falsify reports to management, which Delta encouraged and welcomed in order to justify the termination of senior flight attendants. (Id. ¶¶ 14(b-c).)

On February 5, 2018, Plaintiff was issued her first write-up in 55 years, for alleged policy violations based on two incidents on September 17, 2017 and November 23, 2017. (Id. ¶ 14(e).) The first incident arose out of an accusation by a coworker (Richard Hamrich) that Plaintiff paid another flight attendant (Kimberly Reicks) $100.00 “to reach tall bins while working at the galley.” (Id. ¶ 14(f).) This allegation was not true. Reicks did assist Plaintiff, but Plaintiff did not pay Reicks $100.00. (Ibid.) Moreover, Hamrich made this accusation after Plaintiff witnessed him “sexually assault another male flight attendant by grabbing the other flight attendant’s crotch.” (Ibid.) Hamrich later recanted this accusation and directly apologized for the false accusation. (Ibid.) Plaintiff’s manager Misserian assured Plaintiff that Defendants would remove the write-up from Plaintiff’s file, but Defendants failed to do so. (Ibid.)

“The second incident, in the February 5, 2018 write-up, alleged that [Plaintiff] failed to work at her designated position on November 23, 2017.” (Id. ¶ 14(g).) This allegation was also untrue. “[Plaintiff] refused to sign the write-up because of the numerous fabrications therein.” (Ibid.)

The February 5, 2018 write-up damaged Plaintiff’s employment. For 18 months, “[Plaintiff] became ineligible for transfer, promotion, or special assignment outside in-flight services and ineligible to participate in the purser program.” (Id. ¶ 14(h).)

“On February 9, 2018, [Plaintiff] again received a positive review for her excellent work ethic, customer service, and adherence to company policy.” (Id. ¶ 14(j).) Shortly after the positive review on February 9, 2018, younger flight attendants including defendants Kao, Lau, and Ognovic treated Plaintiff negatively and aggressively. (Id. ¶ 14(k).) “On several occasions, these defendants verbally harassed [Plaintiff] by screaming at her in front of passengers. A co-worker informed [Plaintiff] that defendant Ognovic announced to other flight attendants, ‘I [defendant Ognovic] am trying to get her [Plaintiff] fired any way I can!’ Additionally, defendant Kao had expressed the same sentiment to another flight attendant, saying she was ‘trying to get her [Plaintiff] fired.’ In furtherance of their plan, defendants Ognovic and Kao claimed that [Plaintiff] could not arm and/or disarm doors, maliciously imputing such alleged incapacity to her age and sex. Moreover, defendant Ognovic circulated pictures of [Plaintiff] in another attempt to defame her. [Plaintiff] had no issues with performing her tasks and received rave performance reviews throughout her tenure at Delta.” (Id. ¶ 14(l).)

Defendants Kao, Lau and Ognovic also spread rumors “that [Plaintiff] had stolen items from aircrafts for personal use (repeatedly made by Kao, Lau and Ognovic from 2017 to the time of termination), that she was stealing chocolate, that she was eating food before serving passengers (a false statement made by Kao in or around late 2018), that she was stopped by U.S. customs agents who discovered the stolen items and that she was suspended for two weeks for stealing (Ognovic made this false accusation in or around 2018 of which was untrue). Another employee of Delta (name unknown at this time) also falsely stated that [Plaintiff] put Bailey’s Irish Cream in her coffee during a flight (this occurred in or around 2018).” (Id. ¶ 14(m).)

Plaintiff requested that defendant Ognovic stop spreading these rumors. In response “Ognovic pulled out pictures she had of [Plaintiff] with her head down as an intimidation tactic, demanding that [Plaintiff] ‘back off!’” (Id. ¶ 14(o).) Plaintiff complained about the numerous rumors to the in-flight manager and the base manager, who did nothing. (Ibid.)

“On April 11, 2018, [Plaintiff] lodged a written complaint with defendants’ manager Ann Johnson, recounting the bullying and slander she had endured thus far from defendants.” (Id. ¶ 14(p).) In response, “[o]n April 29, 2018, [Plaintiff] received an informal oral coaching warning for purportedly ‘creating crew conflict with gossiping.’” (Id. ¶ 14(q).)

“[D] efendants Kao and Lau continued to target [Plaintiff] with malicious conduct, including spreading rumors that she often stopped service to passengers so she could eat herself, all the while circulating old pictures of [Plaintiff] on flights.” (Id. ¶ 14(s).)

On May 8, 2018, Plaintiff filed another written report about harassment and bullying by co-workers. Specifically, “flight attendant defendant Redden, with whom [Plaintiff] had no history, unforeseeably verbally abused [Plaintiff] with such hostility that another flight attendant could not understand how [Plaintiff] was able to remain so calm during the attack.” (Id. ¶ 14(t).) Plaintiff reasonably believed that these unwarranted attacks stemmed from other flight attendants’ resentment of Plaintiff for the privileges that accompanied her age and seniority. Plaintiff’s complaint was again ignored. (Ibid.)

“On June 1, 2018, [Plaintiff] received an unfounded disciplinary action for purportedly removing catering items from the aircraft.” (Id. ¶ 14(u).) During a three-day international flight, on September 28, 2018, defendant Kao verbally harassed Plaintiff by “hostilely screaming at [Plaintiff] without provocation.” (Id. ¶ 14(w).) Upon returning to the U.S., defendant Kao filed a false complaint against Plaintiff. (Ibid.) A week later, defendant Kao assaulted Plaintiff “by throwing a large bag full of covers directly at her head.” (Id. ¶ 14(x).)

On October 23, 2018, Plaintiff was singled out to receive an informal oral coaching compliance warning for failing to adhere to the bag and room policy. (Id. ¶ 14(y).) On January 22, 2019, Plaintiff was written up for alleged “unprofessional interactions with a crew member” for the conduct during the September 28, 2018 flight. (Id. ¶ 14(z).) “When presented with this write-up, defendants did not consult [Plaintiff] to hear her side of the story.” (Ibid.) Rather, these defendants readily took the falsely made accusation as true. (Ibid.) Due to this write-up, Plaintiff was placed on a three-year period of probation. (Id. ¶ 14(aa).) At a meeting regarding the write up, Plaintiff’s manager at the time (Anne Johnson) read the write-up to Plaintiff, and Weese “just remained silent, assenting to Ms. Johnson’s write up and Kao’s complaints.” (Ibid.)

During a flight on March 13, 2019, Plaintiff was pulled away from completing her customs form to retrieve another glass of wine for a passenger. (Id. ¶ 14(bb).) Unbeknownst to Plaintiff, during this flight, the flight attendant defendants “intentionally placed Delta food products near her bag and took pictures to create the artificial impression that [Plaintiff] was stealing from the company.” (Id. ¶ 14(cc).) While Plaintiff was retrieving the glass of wine for the passenger, “a large plastic bin flew out of the chiller and hit [Plaintiff] on the forehead, causing her head to swell and leaving her dazed.” (Id. ¶ 14(bb).) Plaintiff attended to her injury and served her passenger. In filling out the customs form, Plaintiff “had inadvertently made a mistake on the form by failing to mark ‘yes’ under ‘animal products’ when she was rushing to serve the passenger and complete the form after the injury to her forehead[.]” (Id. ¶ 14(dd).) Upon arrival, Plaintiff was chosen for a random customs check during which Plaintiff orally corrected the error on her customs form by orally declaring that she had brought a small carton of milk. (Id. ¶ 14(dd).) Plaintiff had purchased the small carton of milk prior to the flight and had not taken the milk from the aircraft. Despite her oral declaration, Plaintiff was fined as “[a]pparently, the milk [Plaintiff] purchased was not sufficiently marked with the country of origin and, unlike defendant Delta’s catering items, would not be allowed through customs.” (Ibid.)

On April 15, 2019, Plaintiff was pulled into a meeting with Weese and a field service manager about this customs incident. (Id. ¶ 14(ee).) When interrogated during this meeting, Plaintiff admitted that she had taken the milk from the plane. Previously, Misserian had advised Plaintiff that she would not get into trouble for taking milk off a plane, but that it might look bad. (Id. ¶ 14(ee).) Management ignored the fact that Plaintiff bought her own milk and pegged her as a thief and a liar. (Id. ¶ 14(ee).)

Later that day, Plaintiff “approached [] Misserian on April 15, 2019 to ask why she was being reprimanded for allegedly taking milk off the plane when Misserian had advised her that this was not a disciplinary offence.” (Id. ¶ 14(ff).) Misserian then lied and denied ever saying such a thing. (Ibid.)

The following day, on April 16, 2019, Plaintiff was summoned to a meeting with field service manager defendant Jesse, base director Weese, and another field service manager (Mark Liv). (Id. ¶ 14(gg).) “During this meeting, [Plaintiff] corrected her previous statement that she had taken milk off the aircraft by honestly stating that she had purchased the milk at a supermarket prior to her flight. Defendants refused to believe her because of alleged inconsistencies and even accused her of stealing nine (9) bowls of cereal provided for the flight.” (Ibid.) Defendant Paul had falsely accused Plaintiff of taking nine cereal bowls from the flight and milk from storage, falsely stating that “she [defendant Pamela] asked her [plaintiff] to take it out of her bag but she [plaintiff] refused.” (Ibid.) However, the individual in charge had confirmed that they were in fact short of these catered items at the beginning of the flight. (Ibid.) Plaintiff informed defendants that the accusations were false. However, defendants framed her complaints as diversions and ignored them. (Id. ¶ 14(hh).) At the end of the meeting, defendants informed Plaintiff that she was suspended without providing her with a reason for the suspension. (Id. ¶ 14(ii).)

On April 19, 2019, Plaintiff called Jesse to reiterate her complaints of harassment and of the false accusations against her. Jesse characterized Plaintiff’s complaints as a distraction. (Id. ¶ 14(kk).) Plaintiff sent multiple written reports detailing the false accusations against her on April 20, 2019, April 22, 2019, and April 23, 2019. (Id. ¶¶ 14(ll, nn, pp).) Plaintiff also forwarded an email from Misserian to demonstrate that Misserian had told her to just take milk off the plane. (Id. ¶¶ 14(kk, mm).)

“On April 22, 2019, defendants privately reached the decision to compel Ms. Gomez’s resignation and, if she refused, to terminate her employment.” (Id. ¶ 14(oo).) On April 26, 2019, another flight attendant confirmed that Plaintiff had not taken milk from the aircraft as all items were accounted for, but Defendants ignored this information. (Id. ¶ 14(qq).) “To make matters worse, defendants, and each of them, started spreading malicious rumors about the incident to the detriment of plaintiff’s reputation.” (Id. ¶¶ 14(rr).)

“On April 30, 2019, defendants submitted a summary of their investigation “falsely determined that [Plaintiff] stole two cartons of milk, two (or nine) of ten (or 12) bowls of cereal, two (or three) bags of chocolates, yogurt, all of the espresso, and an entire pizza, all during a single flight.” (Id. ¶¶14(ss).) Despite the absence of evidence, defendants decided that “after a spotless 56 years, Ms. Gomez had suddenly transformed into a thief who needed to be fired.” (Ibid.)

On May 8, 2019, Plaintiff sent a written complaint of this ongoing harassment to Goswani Rajan of Delta, which was ignored. (Id. ¶¶ 14(tt-uu).) “On May 23, 2019, defendants issued an ultimatum to [Plaintiff]: retire, or suffer employment termination and the loss of her pension.” (Id. ¶ 14(vv).) “On May 29, 2019, [Plaintiff] lodged another written complaint, asking if the decision to terminate her employment were because of her age.” (Id. ¶ 14 (ww).) On June 6, 2019, Plaintiff was fired. (Id. ¶ 14(xx).) “As a result of the sudden and wrongful termination of her employment, [Plaintiff] has suffered and continues to suffer severe emotional distress, including emotional distress, anxiety, and mental suffering.” (Id. ¶ 14(zz).)

(a) If a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponent’s control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.

(b) This motion shall be made no later than 60 days after the completion of the record of the deposition, and shall be accompanied by a meet and confer declaration under Section 2016.040.

(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 an answer or 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.

The Court finds that Defendants have sufficiently met and conferred. (Cho Decl. ¶¶ 16-21.)

Defendants seek to compel Plaintiffs further responses to deposition questions and to compel the production of documents identified in the deposition notice served on Daniel Henderson.

In response to the questions at issue, Henderson’s Counsel objected, and Henderson refused to respond to the questions based on attorney-client privilege.

“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.)

The mere fact that the attorney and client communicated is insufficient to raise the attorney-client privilege as “not all communications with an attorney are privileged. Instead, the attorney-client privilege attaches only to confidential communication made in the course of or for the purposes of facilitating the attorney-client relationship.” (Catalina Island Yacht Club v. Superior Court (2015) 242 Cal.App.4th 1116, 1130, Fn. 5.) “The privilege protects the disclosure of communications between attorney and client. It does not protect disclosure of the underlying facts which were communicated[.]” (Zimmerman v. Superior Court (2013) 220 Cal.App.4th 389, 396.)

As noted by statute, Attorney-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.” (Evid. Code, § 912(a).) “The privilege may also be impliedly waived where a party to a lawsuit places into issue a matter that is normally privileged. It is said that in that case the gravamen of the lawsuit is so inconsistent with the continued assertion of the privilege as to compel the conclusion that the privilege has in fact been waived.” (Transamerica Title Ins. Co. v. Superior Court (1987) 188 Cal.App.3d 1047, 1052.) “The scope of either a statutory or implied waiver is narrowly defined and the information required to be disclosed must fit strictly within the confines of the waiver.” (Ibid.)

Here, attorney client privilege is not applicable to most of the questions. Question 1 involves whether Henderson has signed an engagement letter with the Shegerian Law Firm. This is a question of underlying fact and does not seek to elicit the substance of any confidential communication. Similarly, Question 2, 3, 4, 5, 6, 7, 8, 9, 11, 12, 14, 15, 16, 20, 21, 22, 23, 26, 39 each seeks to elicit underlying facts - not communications to which the attorney client privilege would apply.

Questions 10, 13, 24, 25, 27, and 28 do not seek to elicit any attorney-client communications. For example, as to question 10, whether Henderson was threatened with loss of his job at the Shegerian law firm involves communications between an employer (the Shegerian law firm) and employee (Henderson) – not any privileged communications between Plaintiff and her counsel. Similarly, the amount of time Henderson spent communicating with Plaintiff is a fact independent and apart from the substance of any communications themselves.

As to Questions 29, 31, 32, 33, 34, 35, 36, 37, 38, Plaintiff has waived any attorney-client privilege by texting to third parties that Henderson “wanted [Plaintiff] to say that she was distressed, upset, sad, emotionally in bad shape” during the mental examination, that Plaintiff “probably disappointed [Henderson] because [she] forgot that [she] was supposed to be despondent,” that Plaintiff was fearful she would be dropped as client if she did not make television appearances, that Plaintiff wished Henderson had accepted an earlier settlement, and that Plaintiff wanted Henderson out of her life. (Cho Decl. ¶ 12, Exh. H.)

As to the remaining Questions -- Questions 17, 18, 19, 30 – the Court finds that the attorney client privilege applies and has not been waived. Questions 17, 18, 19, 30, involve Henderson’s impressions and communications as attorney with Plaintiff and do not directly involve any communication waived by virtue of Plaintiff’s text messages. Waiver is to be narrowly construed. Thus, the attorney-client privilege objection is proper as to Questions 17, 18, 19, 30.

As to the requests for documents, the Court finds that the document production would be premature as all documents related to communications regarding Plaintiff’s mental examination have not been necessarily waived. Moreover, without some testimony by Henderson on the specific matters he wishes to testify the Court cannot conclude that there is an implied waiver of such documents.

The deposition notice requires Henderson to produce at deposition the following documents:

“All DOCUMENTS reflecting any and all of YOUR COMMUNICATIONS with PLAINTIFF that are referenced in PLAINTIFF’S text message (bates labeled IGL0002087) sent on June 22, 2022, stating ‘Maybe that was all. My atty wanted me to say that I am distress, upset, sad, emotionally in bad shape.’” (Depo Documents Request 1.)

“All DOCUMENTS reflecting any and all of YOUR COMMUNICATIONS with PLAINTIFF that contain any instructions or advice on discussing PLAINTIFF’S alleged emotional distress (described in her COMPLAINT) with nonparties to this ACTION.” (Depo. Documents Request 2.)

“All DOCUMENTS reflecting any and all of YOUR COMMUNICATIONS with PLAINTIFF about her emotional distress allegations in preparation for PLAINTIFF’S mental examination with Dr. Ocatvio Choi on June 21, 2022.” (Depo. Documents Request 3.) (how she should behave at)

“All DOCUMENTS reflecting any and all of YOUR COMMUNICATIONS with PLAINTIFF about her alleged emotional distress as referenced in PLAINTIFF’S COMPLAINT.” (Depo. Documents Request 4.)

“Objection: This request is vague and ambiguous, precluding an intelligent reply. Cembrook v. Superior Ct. (1961) 56 Cal.2d 423; Deyo v. Kilbourne (1978) 84 Cal. App. 3d 771. This request fails to state with sufficient particularity the items sought. C.C.P. § 2031.030(c)(1). The quantity of work required to respond renders the discovery request unduly burdensome. Perkins v. Superior Ct. (1981) 118 Cal. App. 3d 761. This request is oppressive, as the burden to respond is incommensurate with the result sought, showing the propounding party’s intention of creating an unreasonable burden. Mead Reinsurance Co. v. Superior Ct. (1986) 188 Cal. App. 3d 313. This request is overbroad, creating an undue burden for responding party. Perkins, supra; see also Durst v. Superior Ct. (1963) 218 Cal. App. 2d 460. This request invades the attorney work product doctrine. C.C.P. § 2018.010-2018.080. This request invades the attorney-client privilege. C.C.P. § 2017.010; Evidence Code §§ 950-954. This request invades a right to privacy.” (Response to Depo Document Requests 1-4.)

Plaintiff’s objections as to relevance, admissibility, and materiality are overruled and moreover do not supply a basis to withhold production. Pursuant to Code of Civil Procedure section 2025.460(c), “[o]bjections …. to the relevancy, materiality, or admissibility at trial of the testimony or of the materials produced are unnecessary and are not waived by failure to make them before or during the deposition.” (CCP § 2025.460(c).) “Moreover, even were the questions designed to elicit irrelevant evidence, irrelevance alone is an insufficient ground to justify preventing a witness from answering a question posed at a deposition.” (Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1014.) Thus, similarly with documents sought at a deposition, relevance, materiality, and admissibility are insufficient grounds to withhold production of documents at a deposition.

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, there is no indication of the burden it would take to respond to the request. Thus, the objection based on burden is unsubstantiated.

As to the assertion of attorney client privilege, “[t]he party asserting the privilege need only present facts which ‘support a prima facie claim of privilege.” (OXY Resources California LLC, supra, 115 Cal.App.4th at p.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.)

Here, each of the requests clearly seeks attorney client privileged documents – i.e., communications between Plaintiff and her attorney Henderson regarding legal advice given. The attorney-client “privilege attaches to any legal advice given in the course of an attorney-client relationship.” (Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 733.) “The attorney-client privilege attaches to a confidential communication between the attorney and the client and bars discovery of the communication irrespective of whether it includes unprivileged material.” (Id. at p.734, [italics added].)

However, Plaintiff has waived the attorney-client privilege with respect to the subjects that she texted to third parties. (Cho Decl. ¶ 12, Exh. H.) “The scope of the waiver ‘is narrowly defined and the information required to be disclosed must fit strictly within the confines of the waiver.’” (Ross v. Superior Court of Riverside County (2022) 77 Cal.App.5th 667, 683.) Not every single document regarding issues of emotional distress would be waived. Some of Defendant’s requests above are overbroad.

The first request is specifically tailored to the waiver effected by Plaintiff’s text messages with third parties and does not seek communication outside the scope of the waiver.

The second request is slightly beyond the scope of the waiver and is hereby narrowed to:

“All DOCUMENTS reflecting any and all of YOUR COMMUNICATIONS with PLAINTIFF that contain any instructions or advice on discussing PLAINTIFF’S alleged emotional distress (described in her COMPLAINT) with the mental health expert who performed the mental examination referenced in Plaintiff’s June 22, 2022 text message (bates labeled IGL0002087).”

The third document request is similarly overbroad in seeking possible document that would fall outside the scope of the waiver. Accordingly, request three is hereby narrowed to:

“All DOCUMENTS reflecting any and all of YOUR COMMUNICATIONS with PLAINTIFF about how Plaintiff should behave and how Plaintiff should describe her emotional distress during PLAINTIFF’S mental examination with Dr. Ocatvio Choi on June 21, 2022.”

As to request four, the request for all documents reflecting discussions involving emotion distress is clearly beyond the scope of waiver effected Plaintiff’s text messages to third parties. This request would even include conversations that occurred after the waiver in the June 22, 2022 text message. Moreover, requests 1-3 as narrowed above cover the scope of issues that have been waived. Accordingly, Defendants motion to compel further response is denied as to request four.

As to requests 1-3, as the requests – as narrowed above – fall within the scope of waiver.

Henderson has not failed to indicate what specific documents he is withholding that he believes are privileged. Henderson must produce a privilege log identifying the documents that are being withheld as to the remaining three requests – as narrowed above –containing enough factual information to support a prima facie claim of privilege.

Here, sanctions were not requested in the notice. Therefore, no sanctions can be awarded. (CCP § 2023.040, [“A request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought.”].)

Based on the foregoing, Defendant Delta Airlines, Inc., Jennifer Kao, Pamela Paul Barbara Lau, and Sharon Redden’s motion to compel further deposition testimony is GRANTED as to questions 1-16, 20-29, and 31-39 and GRANTED as to document production requests 1-3 as modified and narrowed above. The motion is otherwise DENIED.

[1] On August 10, 2022, the Court granted Defendant Delta’s motion for summary adjudication as to the claim for sexual discrimination. (Order 8/10/22.)

[2] The complaint alleges liability against the eight individual defendants only as to the second and fifth causes of action.

Superior Court of California

County of Los Angeles

Department 26