Judge: Elaine Lu, Case: 20STCV06099, Date: 2022-10-04 Tentative Ruling

Case Number: 20STCV06099    Hearing Date: October 4, 2022    Dept: 26

Superior Court of California

County of Los Angeles

Department 26

Procedural Background       

             On February 13, 2020, plaintiff Daniel Girch (“Plaintiff”) filed the instant employment discrimination action against defendants Lockheed Martin Corporation (“Defendant” or “Lockheed”), Courtney Magill (“Magill”), and Brittany Albertson (“Albertson”) (collectively “Defendants”).  On May 5, 2022, Plaintiff filed the operative Second Amended Complaint (“SAC”) against Defendants.  The SAC asserts ten causes of action for (1) Age Discrimination; (2) Gender Discrimination; (3) Race Discrimination; (4) Harassment/Hostile environment based on Age; (5) Retaliation under the Fair Employment and Housing Act (“FEHA”); (6) Failure to Prevent Discrimination, Harassment, and Retaliation; (7) Wrongful Termination in Violation of Public Policy; (8) Slander; (9) Libel; and (10) Intentional Infliction of Emotional Distress.

            On March 15, 2022, Plaintiff filed the instant motion to compel further responses to Special Interrogatories, Set Four (“SROGs”) from Defendant Lockheed.  On June 30, 2022, the Court conducted an informal discovery conference.  (Minute Order 6/30/22.)  On August 30, 2022, the Court ordered the parties to further meet and confer regarding the instant motion and to file a joint statement listing the remaining issues in dispute.  On September 20, 2022, Defendant Lockheed filed an opposition.  On September 27, 2022, Plaintiff filed a reply.  On September 28, 2022, the parties filed a joint statement.

Allegations of the Operative Complaint

The SAC alleges as follows:

Plaintiff was employed by Defendant Lockheed in May 2010 and was consistently rated as “exceeding expectations.” (SAC ¶ 12.) “During his employment with Lockheed, Plaintiff was subjected to discriminatory and harassing comments based on his age, including but not limited to being told that he was “old school,” that there was a “generational gap” between him and his younger co-workers, and that one of his co-workers had to act as the “generational mediator” between him and his younger co-workers. Plaintiff was also subjected to discriminatory and harassing comments based on his disability by his co-workers who criticized him for taking time off because of his disability.” (SAC ¶ 13.) “During his employment with Lockheed, Lockheed exhibited a preference towards younger employees. Plaintiff’s superiors and human resources made this preference clear to Plaintiff by directing him to only hire recent college graduates.” (SAC ¶ 14.)

“Plaintiff advised his immediate leadership and human resources on numerous occasions that he felt harassed and discriminated against by several co-workers and human resources personnel at Lockheed because of his age and/or disability, but his complaints were ignored. Plaintiff is informed and believes that Lockheed employees to whom he complained about harassment and unfair treatment also participated in the training program which was denigrating to white males, and older white males.” (SAC ¶ 19.) “In or about February 2019, Defendants Magill and Albertson made knowingly false oral and written statements to Lockheed’s human resources and ethics departments falsely alleging that Plaintiff engaged in inappropriate behavior (Defendant Magill and Albertson), retaliation (Defendant Magill), favoritism (Defendants Magill and Albertson) and mischarging, i.e., stealing time (Defendant Albertson).” (SAC ¶ 20.) “Instead of investigating Plaintiff’s complaints of discrimination and harassment, Lockheed commenced an investigation of Plaintiff based on Defendant Magill’s and Albertson’s defamatory accusations.” (SAC ¶ 21.) “Throughout the investigation, multiple additional knowingly false statements were made about Plaintiff including but not limited to the following: that Plaintiff was “being sneaky” (Magill); that Plaintiff told employees to lie to Lockheed’s investigators (Magill and Albertson); that Plaintiff hindered investigations (Magill); that Plaintiff was so angry he would hit Defendant Magill (Magill); that Plaintiff engaged in favoritism (Magill and Albertson); that Plaintiff engaged in retaliation (Magill); that Defendant Magill’s health issues were because of Plaintiff (Magill); that Defendants Albertson and Magill were terrified of Plaintiff; that Plaintiff had no filter (Magill); that Plaintiff shares personal information about pay and performance (Magill); that Plaintiff treated male employees differently (AJ Dornis); that Plaintiff thinks he is above the law (Barry Linder). The foregoing statements were knowingly false and Lockheed’s investigators lacked reasonable grounds to believe any of the foregoing statements were true.” (SAC ¶ 23.) “Lockheed’s Ethics Officers, including Danielle Bartos, Darren Hill, Brenda Portzen and potentially other Lockheed employees, went on to prepare a report of the investigation which was full of false and defamatory statements about Plaintiff and which statements were used to support purported findings that Plaintiff engaged in ‘favoritism,’ ‘retaliation’ and ‘unacceptable leadership behaviors.’” (SAC ¶ 25.)

“On or about April 18, 2019, based on Defendants Magill’s and Albertson’s knowingly false and defamatory accusations, Lockheed terminated Plaintiff’s employment, falsely stating that Plaintiff had engaged in ‘inappropriate behavior,’ ‘unacceptable leadership behaviors, favoritism, and retaliation.’” (SAC ¶ 27.) When Plaintiff was terminated, he was 62 years of age. (SAC ¶ 28.)

Legal Standard

Code of Civil Procedure section 2030.300 provides that “[o]n receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that any of the following apply: (1) An answer to a particular interrogatory is evasive or incomplete; [or] (2) An exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate; [or] (3) An objection to an interrogatory is without merit or too general.”  (CCP § 2030.300(a).)

Notice of the motion must be given within 45 days of service of the verified response, or upon a later date agreed to in writing.  Otherwise, the propounding party waives any right to compel a further response.  (CCP § 2031.310(c).)  The motion must also be accompanied by a meet and confer declaration.  (CCP § 2031.310(b)(2).)

The burden is on the responding part to justify any objection or failure fully to answer the interrogatories.  (Fairmont Ins. Co. v. Superior Court (Stendell) (2000) 22 Cal. 4th 245, 255.)

Discussion

Plaintiff moves to compel a further response to SROG Nos. 17, 18, and 19.

Meet and Confer

Pursuant to Code of Civil Procedure section 2030.300(b)(1) 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 § 2030.300(b)(1).)  “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.) 

            On December 22, 2021, Plaintiff served the instant SROGs on Defendant Lockheed.  (Dean Decl. ¶ 2, Exh. 1.)  After an extension to the time to respond, on January 25, 2022, Lockheed served its response to the SROGs at issue.  (Dean Decl. ¶¶ 4-5, Exhs. 2-3.)  On March 1, 2022, Plaintiff sent a meet and confer letter regarding Lockheed’s objections to the SROGs at issue.  (Dean Decl. ¶ 8, Exh. 4.)  On March 9, 2022, Defendant Lockheed’s Counsel responded noting that Defendant Lockheed would amend some responses but was maintaining the objections to the SROGs at issue.  (Dean Decl. ¶ 9, Exh. 5.)  The same day, Plaintiff’s Counsel responded by sending another meet and confer letter providing authority as to why further responses to SROGs at issue was warranted.  (Dean Decl. ¶ 10, Exh. 6.)  On March 11, 2022, Defendant Lockheed’s Counsel responded stating that Lockheed’s position regarding the SROGs at issue had not changed and that the requests needed to be narrowed.  (Dean Decl. ¶ 11, Exh. 7.) 

On September 1, 2022, the parties met and conferred.  (Davidson Decl. ¶ 10; Supp. Dean Decl. ¶ 9.)  Defendant Lockheed’s Counsel states that he re-raised the points raised in the March 11, 2022 letter and requested that Plaintiff withdraw and narrow the interrogatories, and that Plaintiff’s Counsel that she would think about it.  (Davidson Decl. ¶ 10.)  Plaintiff’s Counsel states that while the parties did meet and confer, Plaintiff’s Counsel only stated that she would re-look at the authorities cited by Defendant Lockheed.  (Supp. Dean Decl. ¶ 9.)

Based on this evidence, it does appear that the parties did sufficiently meet and confer.

The Instant Motion is Timely

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. (See CCP § 2030.300(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)(B), 1013.)

Here, on January 25, 2022, Lockheed served its response to the SROGs at issue by electronic service.  (Dean Decl. ¶ 5, Exhs. 3.)  Thus, Plaintiff had until March 14, 2022 to timely file the instant motion.  However, the parties agreed to extend the deadline to March 29, 2022.  (Dean Decl. ¶ 12, Exh. 5.)  Accordingly, the instant motion filed March 15, 2022 is timely.

SROGs 17-19

            SROGS 17-19 seek the following information:

“For any management employee wherein an allegation of ‘retaliation’ was substantiated, and the matter was submitted to a disciplinary review board chaired by Brenda Portzen, identify the individual by position, gender, age and race, describe the acts of retaliation substantiated and state whether disciplinary action was taken and if so, the nature of the action taken.”  (SROG No. 17.)

            “For any management employee wherein an allegation of ‘leader interpersonal skills’ was substantiated, and the matter was submitted to a disciplinary review board chaired by Brenda Portzen, identify the individual by position, gender, age and race, describe the acts related to ‘leader interpersonal skills’ which were substantiated and state whether disciplinary action was taken and if so, the nature of action taken.”  (SROG No. 18.)

            “For any management employee wherein an allegation ‘personal relationships or favoritism’ was substantiated, and the matter was submitted to a disciplinary review board chaired by Brenda Portzen, identify the individual by position, gender, age and race, describe the acts determined to be ‘personal relationships or favoritism’ and state whether disciplinary action was taken and if so, the nature of the action taken.”  (SROG No. 19.)

            In response to each of these requests, Defendant Lockheed responds identically stating that:

            “Defendant objects to this interrogatory on the grounds that it is overbroad as to time and location. Defendant objects that this interrogatory is overbroad as to scope, in that it does not seek information on individuals who are similarly situated to Plaintiff, with a similar history of prior discipline and subsequent investigation for multiple grounds of misconduct. See, Vasquez v. Cty. Of Los Angeles, 349 F.3d 634, 641–42 (9^th Cir. 2003) (comparators not proper where they have not engaged in conduct of comparable seriousness to that of the plaintiff); Wills v. Superior Court, 195 Cal. App. 4^th 143, 172 (2011) (same.) Defendant objects that this interrogatory seeks information beyond the scope of the litigation, in that the operative complaint does not allege claims of gender and race discrimination, making that demographic information neither relevant to the subject matter of this litigation nor reasonably calculated to lead to the discovery of admissible evidence in violation of Code of Civil Procedure, Section 2017.010. Defendant objects that this interrogatory violates Code of Civil Procedure, §§ 2017.020(a) and 2019.030(a)(2) because ‘the burden, expense, or intrusiveness of the discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence’ and ‘the discovery is unduly burdensome or expensive, taking into account the needs of the case, the amount in controversy, and the importance of the issues at stake in the litigation.’ Defendant objects that this interrogatory infringes upon the privacy rights of third parties to this litigation.”  (Response to SROG Nos. 17-19.)

Objection: Overbroad and Burden

The SAC alleges that there were substantiated claims that Plaintiff engaged in “favoritism”, “retaliation, and “unacceptable leadership behaviors,” which were the bases cited to support Plaintiff’s termination.  (SAC ¶ 25.)  Thus, these requests are clearly relevant because they seek comparative evidence.

“Comparative evidence is ‘evidence that [the plaintiff] was treated differently from others who were similarly situated’ but are outside the plaintiff's protected class.”  (Gupta v. Trustees of California State University (2019) 40 Cal.App.5th 510, 519.)  “Evidence that an employer treated ‘ “similarly situated” ’ employees outside the plaintiff's protected class ‘ “more favorably” ’ is probative of the employer's discriminatory or retaliatory intent.”  (Ibid.)  “ ‘To be probative,’ ‘comparative data ... must be directed at showing disparate treatment between employees who are ‘similarly situated’ to the plaintiff in all relevant respects.”  (Id. at pp.519-520.)  “In general, ‘individuals are similarly situated when they have similar jobs and display similar conduct.’”  (Id. at p.520.)  Further, “[a]nother employee is similarly situated if, among other things, he or she ‘ “engaged in the same conduct without any mitigating or distinguishing circumstances.” ’ ”  (Wills v. Superior Court (2011) 195 Cal.App.4th 143, 172.) 

            However, Plaintiff is not limited in discovery to solely admissible and probative evidence in discovery.  “[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.)  “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, Defendant Lockheed contends that the requests are overbroad because they are not limited to those similarly situated to Plaintiff, include demographic information not alleged in the operative complaint, and are not limited in time and location.  As to time and location, the request is limited as it only seeks information regarding allegations submitted to a disciplinary review board chaired by Brenda Portzen.  (SROGs. No. 17-19.)  Brenda Portzen chaired the disciplinary review board for Lockheed’s Palmdale location that terminated Plaintiff from 2011 to 2020 when she retired.  (Supp. Dean Decl., Exh. 12, [Portzen Depo. at pp.21:24-22:1, 29:20-21].)  Thus, contrary to Lockheed’s assertion, the SROGs are both inherently limited by time – i.e. from 2011 to 2020 – and by location.

            As to the demographic information of gender and race being requested, the complaint that was operative at the time Plaintiff propounded SROGs 17-19 did not include gender or race discrimination claims, and thus, this portion of the SROGs were overbroad when Plaintiff served SROGs 17-19.  However, the SAC now includes claims for discrimination based on gender and race.  Accordingly, Plaintiff has amended the operative complaint, and SROGs 17-19 are no longer overbroad in this regard.

            Finally, as to similarly situated employees, the three requests are limited to those in management positions – such as Plaintiff – against whom claims of “favoritism,” “retaliation,” and “unacceptable leadership behaviors” were substantiated.  Though there may be mitigating or distinguishing factors which may ultimately render such evidence inadmissible, the issue before the court is discoverability – not admissibility – and for purposes of discovery, the SROGs need only appear reasonably calculated to lead to the discovery of admissible evidence.  (CCP § 2017.010.)  

            As to burden, Defendant Lockheed fails to substantiate the extent or amount of burden it will take to comply with this request.

Objection: Privacy

            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.)  Further, “‘Courts have frequently recognized that individuals have a substantial interest in the privacy of their home.’ [Citation.]”  (Puerto, supra, 158 Cal.App.4th at p.1252.)  In addition, there is a clear privacy interest in confidential settlement agreements.  (Hinshaw, Winkler, Draa, Marsh & Still (1996) 51 Cal.App.4th 233, 242 disapproved of on other grounds by Williams v. Superior Court (2017) 3 Cal.5th 531 [“confidential settlement agreements are entitled to privacy protection.”].) 

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.)

            Though there may be third party privacy interest in disciplinary records, SROGs request only the relevant demographic information and do not seek personal identifiers other than basic demographic information.  Thus, any invasion of third party privacy is minimal.

            Accordingly, Plaintiff’s motion to compel further responses to SROGs No. 17-19 is granted.

Sanctions

Plaintiff requests sanctions against Defendant Lockheed and its counsel of record to reimburse Plaintiff for the cost of bringing the motion.  Specifically, Plaintiff seeks reimbursement of 4 hours to prepare the motion and a joint statement, 3 hours to prepare a reply, and 1 hour to attend the hearing billed at $750 per hour for a total of $6,000.00.  (Dean Decl. ¶¶ 16-17.)

“The court shall impose a monetary sanction … against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to [interrogatories or 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].)  Accordingly, sanctions are mandatory unless the circumstances make the imposition of sanctions unjust.

Here, that portion of the objections based on overbreadth was justified before Plaintiff amended the complaint.  Thus, there was some basis for the objections.  Further, the amount requested for sanctions is excessive.  Accordingly, based on the totality of the circumstances the Court finds that sanctions of $2,500.00 reasonably compensates Plaintiff for the attorney’s fees and costs incurred in bringing this motion.

Defendant Lockheed Martin Corporation and Defendant Lockheed Martin Corporation’s counsel of record, Apex Employment Law LLP is jointly and severally liable and are ordered to pay monetary sanctions in the amount of $2,500.00 to Plaintiff Daniel Girch by and through counsel, within thirty (30) days of notice of this order.

CONCLUSIONS AND ORDER

Based on the foregoing, Plaintiff Daniel Girch’s motion to compel further responses to Special Interrogatories, Set Four from Defendant Lockheed Martin Corporation is GRANTED.

Defendant Lockheed Martin Corporation is order to provide verified, further, code compliant responses to Special Interrogatories, set four, interrogatories 17, 18, and 19 without objection within 30 days of notice of this order.

Plaintiff’s request for sanctions is GRANTED AS MODIFIED

Defendant Lockheed Martin Corporation and Defendant Lockheed Martin Corporation’s counsel of record, Apex Employment Law LLP are jointly and severally liable for payment of monetary sanctions in the amount of $2,500.00 to Plaintiff Daniel Girch by and through counsel, within thirty (30) days of notice of this order.

The Court will address the trial date when the case is called.

Moving Party is to give notice and file proof of service of such.

DATED: October 4, 2022                                                       ___________________________

                                                                                          Elaine Lu

                                                                                          Judge of the Superior Court