Judge: Elaine Lu, Case: 20STCV06099, Date: 2023-04-03 Tentative Ruling

Case Number: 20STCV06099    Hearing Date: April 3, 2023    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 February 23, 2023, Defendants filed the instant motion to compel Plaintiff’s mental examination.  On March 7, 2023, the Court ordered the parties to file a joint statement regarding the conditions they each propose for a mental examination of Plaintiff.  On March 8, 2023, the parties filed a joint statement.  On March 17, 2023, Plaintiff filed an opposition.  On March 20, 2023, Defendants filed a reply.

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

            Pursuant to Code of Civil Procedure section 2032.310, “[i]f any party desires to obtain discovery by … a mental examination, the party shall obtain leave of court.”  (CCP § 2032.310(a).)  “A motion for an examination under subdivision (a) shall specify the time, place, manner, conditions, scope, and nature of the examination, as well as the identity and the specialty, if any, of the person or persons who will perform the examination. The motion shall be accompanied by a meet and confer declaration under Section 2016.040.”  (CCP § 2032.310(b).)

Meet and Confer

“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, Defendants have adequately met and conferred.  (Davidson Decl. ¶¶ 1-7, Exhs. A-E.) 

Discussion

            As noted by the parties’ joint statement, only a few issues remain at issue specifically (1) the length and specific tests administered, (2) a limited inquiry regarding Plaintiff’s past sexual history, (3) the production of raw test data to Plaintiff, (4) whether Defendants can review the expert report, and (5) instances of violations of the order.

Length and Tests Administered

            Plaintiff claims that many of the proposed tests are duplicative and that the examination should be limited to six hours.  No explanation has been provided in the joint statement or opposition as to why an eight hour examination would be unreasonable or which of the specific tests are duplicative.

Limited Inquiry into Plaintiff’s Sexual History

            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) 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, as explained by the Supreme Court in near identical circumstances as the instant action with regard to Plaintiff’s claims of ongoing mental ailments and with regard to a mental examination, “Plaintiff's present mental and emotional condition is directly relevant to her claim and essential to a fair resolution of her suit; []he has waived h[is] right to privacy in this respect by alleging continuing mental ailments.”  (Vinson v. Superior Court (1987) 43 Cal.3d 833, 842.)  However, the Supreme Court found that in Vinson, the defendant failed to show good cause as to why such evidence was relevant.  (Vinson, supra, 43 Cal.3d at pp.843-844.)  In contrast, here Defendants present specific facts for the limited inquiry sought. 

            Here, the proposed mental examiner, Dr. Jeffrey M. Lulow explains that a detailed evaluation is required “in differentiating between emotional complaints that may be pre-existing and not related to the alleged actions of Lockheed and the other named Defendants; complaints that were pre-existing but may have been exacerbated by the alleged actions of Defendants; complaints that arose concurrently but are unrelated to the alleged actions of Defendants; complaints that arose as a result of Defendants' alleged conduct; complaints that are actually due to substance use or medications; complaints that are due to an underlying general medical disorder; or complaints that arose subsequent to the alleged actions of Defendants and were unrelated.”  (Lulow Decl. ¶ 4.)  Accordingly, to determine whether there are other past causes for the extreme emotional distress allegedly cause by Defendants, Defendants seek only to inquire Plaintiff – with regard to Plaintiff’s past sexual history or sexual activity, sexual partners or the absence of any of the former – for the limited purpose of determining whether Plaintiff was a victim of any nonconsensual sexual contact and the existence, duration, and general quality of Plaintiff’s romantic relationships generally. 

            This proposed inquiry is limited to the information relevant to the mental inquiry – i.e., other possible causes of the extreme emotional distress that Plaintiff has alleged was caused by Defendants.  Accordingly, a limited inquiry as proposed is proper.

Raw Test Data

            While there is no express statutory requirement requiring the production of raw test data including the test questions and answers, “neither is there statutory authority precluding a trial court, in its discretion, from ordering the disclosure of the written test questions and answer.”  (Carpenter v. Superior Court (2006) 141 Cal.App.4th 249, 271.)  Here, the only basis presented as to why the raw data should not be produced is due to copyright protection of the exam questions.  However, as explained by the Court of Appeal with regard to copyright concerns, “the test questions and answers may be given to plaintiff's counsel or a designated psychologist, subject to a protective order strictly limiting the use and further disclosure of the material, and providing for other safeguards against access that would compromise the integrity and validity of the tests.”  (Id. at p.274.)  Here, there is no reason why producing the raw data to Plaintiff’s counsel subject to a protective order – as already issued in this case – would not satisfy the interest of protecting the copyright in the questions. 

Confidentiality of Mental Examination Information

            As proposed at the informal discovery conference on March 10, 2023, the Court suggested that the examination information be subject to a ten-day attorneys’ eyes only designation such that Plaintiff could move for a protective order for information deemed too sensitive to be revealed to Defendants.  However, as noted by Defendants in reply as the Mental Examination has not yet occurred, and trial is quickly approaching, a ten-day attorneys’ eyes-only designation is too long and would not provide an opportunity for Defendants to review the information before trial.  Accordingly, the examination information shall be subject to a two-day attorneys’ eyes-only designation in which Plaintiff must bring and move ex-parte to advance motion for a protective order for such information.  The Court cautions that any improper or overbroad motion may result in the imposition of sanctions as improper gamesmanship.

Violations of the Courts’ Order

            The admissibility of evidence and the determination of an appropriate sanction for a violation of the parties’ stipulation and this order will be determined by the Court at such time any violation occurs.  

Sanctions

            As to Defendants’ request for sanctions, 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.”].)

            As to Plaintiff’s request for sanctions in opposition the request is denied as Plaintiff did not act reasonably in opposing the instant motion.

CONCLUSIONS AND ORDER

Based on the foregoing, the Defendant Lockheed Martin Corporation, Courtney Magill, and Brittany Albertson motion to compel the mental examination of Plaintiff Daniel Girch is GRANTED.  Plaintiff must submit to a mental examination at a date, time, and location to be noticed by Defendant with at least two court days’ notice.

For good cause appearing, this Court orders that:

1.      As to Paragraph C of the proposed stipulation,

a.        Dr. Lulow may administer all of the following tests:

the Minnesota Multiphasic Personality Iventory-3 (“MMPI-3”);

the Millon Clinical Multiaxial Inventory-IV (“MCMI-IV”);

the Personality Assessment Inventory (“PAI”);

the Trauma Symptom Inventory II;

the Detailed Assessment of Post-traumatic Symptom test.

b.      The examination may take up to 8 hours.

2.      As to Paragraph D of the proposed stipulation regarding inquiry into Plaintiff’s past sexual history, Defendants may make limited inquiry into Mr. Girch’s past sexual history or sexual activity for the purpose of determining his involvement in any violent and/or non-consensual sexual activity or abuse, which is necessary to the determination of the Plaintiff’s present mental and emotional state and condition, issues of contribution, and causation.

3.      As to Paragraph J of the proposed stipulation, Defendants are to produce to Plaintiff within 5 business days of the examination the raw test data.

4.      As to Paragraph L of the proposed stipulation, Dr. Lulow’s written report shall be produced pursuant to Code of Civil Procedure section 2032.610.

5.      As to Paragraph M of the proposed the proposed stipulation, tests, notes, data, and Dr. Lulow’s written report, are subject to a two day attorneys’- eyes only protective order after which the examination information will be subject to the active protective order prohibiting disclosure to those not designated as Qualified Persons

6.      As to Paragraph P of the proposed stipulation regarding the exclusion of evidence the Court shall determine whether, and what sanction is appropriate for a violation of the agreement/stipulation if and when such a situation arises.

Moving Parties are to give notice and file proof of service of such.

DATED: April 3, 2023                                                           ___________________________

                                                                                          Elaine Lu

                                                                                          Judge of the Superior Court

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 February 14, 2023, Plaintiff filed a motion to compel Defendants’ further response to request for production, set thirteen. Pursuant to the Court’s March 2, 2023 Order, Defendant filed an opposition on March 7, 2023 and on March 10, 2023, Plaintiff filed a reply.  On March 28, 2023, the Court advanced the instant hearing to be heard on April 3, 2023.

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

Requests for Production of Documents

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:

(1) A statement of compliance with the demand is incomplete.

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

(3) An objection in the response is without merit or too general.

(b) A motion under subdivision (a) shall comply with both of the following:

(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.

Code Complaint Response

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 Request for Production (“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.)  “If only part of an item or category of item in a demand for inspection, copying, testing, or sampling is objectionable, the response shall contain a statement of compliance, or a representation of inability to comply with respect to the remainder of that item or category.”  (CCP § 2031.240(a).)  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).)

Discussion

            As noted by the parties in opposition and in reply, only RPDs No. 209 and 210 remain at issue.

RPD Nos. 209-210

            “Danielle Bartos’ performance evaluations for the years 2018 and 2019.”  (RPD No. 209.)

            “Sara Marinov’s performance evaluations for the years 2018 and 2019.”  (RPD No. 210.)

            The responses to each are substantially identical and provide that:

            “Defendant objects to this request on the grounds that it is overbroad and seeks 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, in that [Danielle Bartos/Sara Marinov] is neither a party, manager, supervisor, or decision-maker whose private personnel information might be relevant to the claims in the operative Complaint. Defendant further objects to this request on the grounds that it seeks information, the release of which would be a violation of the right of privacy under Article I, Section 1 of the California Constitution, the United States Constitution, and any other constitutional, statutory, or common law protection of privacy rights. It is well established that employment records are within a zone of privacy. See Board of Trustees v. Superior Court, 119 Cal.App.3d 516, 526 (1981) (disapproved on other grounds by Williams v. Sup.Ct., 3 Cal.5th 531, 557 (2017)). It is further well established that before the confidential personnel records of third parties can be disclosed, a compelling need for them must be shown, as well as a showing the information cannot be obtained through other nonconfidential means. Harding Lawson Associates v. Superior Court, 10 Cal.App.4th 7, 10 (1992) (disapproved on other grounds by Williams v. Sup.Ct., 3 Cal.5th 531, 557 (2017)).

            Based on the right of privacy, Defendant will not produce [Danielle Bartos/Sara Marino]’s 2018 or 2019 performance evaluations.”  (Further Amended Response to RPD No. 209-210.)

Privacy Objection

            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, “California courts have generally concluded that the public interest in preserving confidential information outweighs the interest of a private litigant in obtaining the confidential information.”  (Harding Lawson Associates v. Superior Court (1992) 10 Cal.App.4th 7, 10 disapproved of on other grounds by Williams v. Superior Court (2017) 3 Cal.5th 531.)  The fundamental right of privacy “favor[s] privacy for confidential information in third party personnel files unless the litigant can show a compelling need for the particular documents and that the information cannot reasonably be obtained through depositions or from nonconfidential sources.”  (Ibid.)

            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, Danielle Bartos and Sara Marino are both third parties to the instant action.  Thus, Plaintiff’s requests seek the personnel files of two third party individuals which clearly fall within the right of privacy.  Therefore, the burden is on Plaintiff to show some relevance of the personnel files to overcome this fundamental privacy interest.

            As to Danielle Bartos, the operative complaint alleges that she was a Lockheed Ethics Officer and that along with Ethics Officers Darren Hill, and Brenda Portzen “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.)  No allegation is made as to Sara Marino.

            In the instant motion, Plaintiff states that “Danielle Bartos was the Ethics Officer involved in investigations of [Plaintiff], including the investigation which led to the wrongful termination of his employment. During the first investigation, Bartos made ageist comments during the course of the investigation, and [Plaintiff] complained in writing to her about the comments.”  (Separate Statement p.6:10-13.)  Plaintiff states that “Sara Marinov was the human resources business partner working with [Plaintiff] during the time period at issue in this litigation. In particular, she was involved in handling individual defendant Courtney Magill’s appeal of her 2018 performance rating given to Magill, in part, by [Plaintiff]. Magill falsely claimed [Plaintiff]’s evaluation of her performance was retaliatory. Sara Marinov also refused to meet with [Plaintiff] to discuss his complaints and concerns about Courtney Magill.”  (Separate Statement p.9:2-7.) 

While this reasoning would support some discovery surrounding Danielle Bartos and Sara Marinov or having them as witnesses, Plaintiff fails to provide reasoning as to why their personnel files are relevant.  Moreover, the authority cited by Plaintiff does not assist him.

            In Bihun v. AT&T Information Systems, Inc. (1993) 13 Cal.App.4th 976, disapproved of on other grounds by Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, the Court did not address privacy concerns regarding personnel files but rather the attorney acting in bad faith in objecting to a discovery request on privacy and relevance when the file had been lost and the attorney had never seen the file.  (Id. at p.991, Fn 5.)  Thus, Bihun is irrelevant to the instant action as “a case is not authority for a proposition not considered therein or an issue not presented by its own particular facts.”  (Satten v. Webb (2002) 99 Cal.App.4th 365, 383.)

            As to the remaining federal cases relied upon by Plaintiff the Court notes that the federal cases are nonbinding on this court “the decisions of federal district and circuit courts, although entitled to great weight, are not binding on state courts even as to issues of federal law.”  (Alan v. Superior Court (2003) 111 Cal.App.4th 217, 229.)  Moreover, the cases are not persuasive in the instant action. 

CONCLUSIONS AND ORDER

Based on the foregoing, Plaintiff Daniel Girch’s motion to compel a further response to Request for Production, Set Thirteen, is DENIED.

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

DATED: April 3, 2023                                                           ___________________________

                                                                                          Elaine Lu

                                                                                          Judge of the Superior Court

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 14, 2023, Plaintiff filed the instant motion to compel Defendant Lockheed’s further response to Request for Production, Set. 13, No. 207 (“RPD No. 207”).  On March 16, 2023, the Court advanced the instant motion to April 3, 2023.  On March 22, 2023, Defendant Lockheed filed an opposition.  On March 23, 2023, Plaintiff filed a reply.

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

Requests for Production of Documents

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:

(1) A statement of compliance with the demand is incomplete.

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

(3) An objection in the response is without merit or too general.

(b) A motion under subdivision (a) shall comply with both of the following:

(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.

Code Complaint Response

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 Request for Production (“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.)  “If only part of an item or category of item in a demand for inspection, copying, testing, or sampling is objectionable, the response shall contain a statement of compliance, or a representation of inability to comply with respect to the remainder of that item or category.”  (CCP § 2031.240(a).)  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).)

Discussion

RPD No. 207

            “Harry Campagna’s electronically stored file folder for Daniel Girch which he maintained during his employment with YOU.”  (RPD No. 207.)

            “Defendant incorporates its general objections as if fully stated herein. Defendant objects to this Request to the extent it seeks information protected from disclosure by the attorney-client privilege and/or work product doctrine, or any other applicable privilege. Defendant objects that the Request fails to specifically describe each individual item sought or reasonably particularize each category of item sought. Defendant objects that the Request is overbroad and unduly burdensome. Defendant objects that the Request is vague, ambiguous, and unintelligible. Defendant further objects that the Request is not reasonably calculated to lead to the discovery of relevant or admissible evidence. Moreover, Defendant objects that this Request seeks documents already in Plaintiff’s possession, custody, or control. Defendant objects that the Request has, in substance, been previously propounded – such continuous discovery into the same matter constitutes oppression, and Defendant further objects on that ground.”  (Original Response to RPD No. 207.)

            “Defendant objects that this Demand is duplicative of Demand No. 81, to which Defendant provided a full and complete response, and to which the deadline to move to compel has run. Defendant objects that this demand violates Code of Civil Procedure, §2023.010(c), ‘Misuses of the discovery process include, but are not limited to, the following: Employing a discovery method in a manner or to an extent that causes unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.’”  (Amended Response to RPD No. 207.)

            “Defendant incorporates its general objections as if fully stated herein. Defendant objects to this Request to the extent it seeks information protected from disclosure by the attorney-client privilege and/or work product doctrine, or any other applicable privilege. Defendant objects that the Request fails to specifically describe each individual item sought or reasonably particularize each category of item sought. Defendant objects that the Request is overbroad and unduly burdensome. Defendant objects that the Request is vague, ambiguous, and unintelligible. Defendant further objects that the Request is not reasonably calculated to lead to the discovery of relevant or admissible evidence. Moreover, Defendant objects that this Request seeks documents already in Plaintiff’s possession, custody, or control. Defendant objects that the Request has, in substance, been previously propounded – such continuous discovery into the same matter constitutes oppression, and Defendant further objects on that ground. Subject to, and without waiving the foregoing objections, Defendant responds that the demand seeking Harry Campagna’s electronically stored file folder for Daniel Girch is repetitive of Demand No. 49 seeking documents ‘prepared, maintained or kept by Harry Campagna relating to Plaintiff, including but not limited to electronically stored documents, email or deleted email, text messages, and/or notes…’ to which Defendant provided a full and complete response as well as documents. All information responsive to this Demand that is in Defendant’s possession, custody, or control has been previously produced.”  (Further Amended Response to RPD No. 207.)

            Request No. 49 requested that Defendant Lockheed produce “[a]ny and all DOCUMENTS prepared, maintained or kept by Harry Campagna RELATING TO PLAINTIFF, including but not limited to electronically stored documents, email or deleted email, text messages, and/or notes memorializing meetings with PLAINTIFF, PLAINTIFF’s medical diagnosis, PLAINTIFF’s requests to work from home, PLAINTIFF’s requests for leave, PLAINTIFF’s concerns regarding his subordinates, PLAINTIFF’s performance, and/or any of the issues in this litigation. Pursuant to CCP §2031.030(a)(2), PLAINTIFF requests that DEFENDANT produce electronically stored information in its native format with all accompanying metadata.”  (RPD No. 49.)

No Further Response is Warranted

            The Further Amended response clearly states that RPD No. 207 is duplicative of RPD No. 49, which Defendants answered more than two years ago in March 8, 2021.  Moreover, the response substantively provides that “[a]ll information responsive to this Demand that is in Defendant’s possession, custody, or control has been previously produced.”  (Further Amended Response to RPD No. 207.)  By statute, Defendant Lockheed’s response is sufficient. 

            RPD No. 49 fully encompasses RPD No. 207 in that both request Harry Campagna’s electronic files regarding Plaintiff, Defendant Lockheed is not required to reproduce any electronic documents.  Pursuant to Code of Civil Procedure section 2031.280(d)(2), “[a] party need not produce the same electronically stored information in more than one form.”  Therefore, the response that Defendant Lockheed has already produced all requested documents in response to RPD No. 49 is code compliant.  Moreover, the further amended response to RPD No. 207 clearly indicates that the documents produced in response to RPD No. 49 are responsive to the request.  To the extent that Plaintiff contends that the response to RPD No. 49 was insufficient, Plaintiff was required to timely file a motion to compel a further response as to that request.  (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.)

            Moreover, Plaintiff fails to show any good cause in bringing the instant motion.  In order to bring a motion to compel further responses to a request for production of documents, the motion must “set forth specific facts showing good cause justifying the discovery sought by the demand.”  (CCP § 2031.310(b)(1).)  Specific facts must be shown rather than mere conclusions.  (Fireman's Fund Ins. Co. v. Superior Court (1991) 233 Cal.App.3d 1138, 1141.)  Here, no justification has been raised as to why these documents – which have already been produced -- are necessary.

            RPD No. 49 to which Defendants responded more than two years ago fully encompasses any documents that RPD No. 207 could request.  Without explanation, Plaintiff waited until just over a month before trial to bring the instant motion.  The sole reasoning Plaintiff provides is that in deposition testimony in August of 2021, Harrison Campagna states that he had electronic folders to organize emails for all of his direct reports.  (Dean Decl. ¶ 14, Exh. 9.)  The fact that Harrison Campagna used folders to organize files does not indicate that there are more responsive documents or that Defendant must re-answer the same request for production that to which it already previously responded.

            In sum, there is no basis to compel a further response.

CONCLUSIONS AND ORDER

Based on the foregoing, Plaintiff Daniel Girch’s motion to compel a further response to Request for Production, Set Thirteen, No. 207 is DENIED.

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

DATED: April 3, 2023                                                           ___________________________

                                                                                          Elaine Lu

                                                                                          Judge of the Superior Court

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 January 31, 2023, Defendants filed a motion to compel Plaintiff’s further deposition testimony. On February 1, 2023, the Court ordered Defendant to file by February 14, 2023: (1) Plaintiff’s complete deposition transcript as an exhibit to a declaration; and (2) a proposed order in the form of a chart/table with the following 3 columns: (1) "Disputed Question #," (2) "Full Quotation of the Question and Full Exact Quotation of the Response and Objection to the Questio (with page and line citations), and (3) "Court's Ruling." In addition, the Court permitted Plaintiff an opportunity to file an opposition by February 27, 2023 consisting of a proposed order in the form of a chart/table with the following 4 columns: (1) "Question #," (2) "Full Quotation of the Question and Full Exact Quotation of the Response and Objection to the Question" (copied and pasted from the moving party’s chart), (3) “Additional Responsive Testimony Omitted from the Moving Party's proposed order" (if the opposing party believes that the witness responded to the question in portions of the deposition transcript that the moving party has omitted) and (4) "Court's Ruling.” On February 14, 2023, Defendants filed the requested documents. On February 27, 2023, Plaintiff filed an opposition and the proposed order as requested. On March 28, 2023, the Court advanced the instant motion to April 3, 2023.

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 Civil Procedure section 2025.480 provides, in pertinent part, as follows:

(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.

Meet and Confer

Code of Civil Procedure § 2025.480 requires the motion to be accompanied by a meet and confer declaration under Code of Civil Procedure § 2016.040.  (CCP § 2025.480(b).)  Code of Civil Procedure § 2016.040 provides that “[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.)  “[W]hen the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.”  (CCP § 2025.450(b)(2).)

            Here, Defendants have sufficiently met and conferred.  (Wilbur Decl. ¶¶ 2-11.)

Discussion

            Here, twelve questions from the deposition remain at issue for which Plaintiff objects based on attorney client privilege and relevance.  These objections are unfounded.

“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.) 

Here, the objections to attorney-client privilege are raised to questions seeking information whether certain events or acts occurred and do not seek communications that would be covered under attorney-client privilege.  Similarly, the objections as to relevance, admissibility, and materiality are improper and not a basis to refuse to respond to a deposition question.  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.) Accordingly, the Court rules as follows as to the specific objections:

Sanctions

            Here, Defendants request sanctions of $4,650 against Plaintiff and his counsel of record.  Specifically, Defendant Albertson seeks reimbursement of 9.3 hours drafting, responding to, and attending the hearing at $500 per hour for a total of $4,650.00.  (Davidson Decl. ¶ 11.)

            If a motion to compel deposition “is granted, the court shall impose a monetary sanction . . . in favor of the party who noticed the deposition and against the deponent or the party with whom the deponent is affiliated, unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”  (CCP § 2025.450(c), [italics added].)  Thus, sanctions are mandatory unless circumstances make the imposition of sanctions unjust. 

            Here, there are no circumstances making the imposition of sanctions unjust as the statute and case law is clear that Plaintiff’s objections and refusal to answer these twelve questions were warrantless and without merit.  Accordingly, the request for sanctions is GRANTED.  However, the Court finds that the amount of sanctions sought -- $4,650.00 – is excessive.  The Court finds that $3,000 reasonably represents the amount of fees and costs incurred in pursuing the instant motion.

            Plaintiff’s counsel of record, Lauren A. Dean Esq. is ordered to pay monetary sanctions in the amount of $3,000.00 to Defendants by and through counsel, within thirty (30) days of notice of this order.

CONCLUSIONS AND ORDER

Based on the foregoing, the Defendant Lockheed Martin Corporation, Courtney Magill, and Brittany Albertson’s motion to compel Plaintiff Daniel Girch’s further deposition testimony is GRANTED.  Plaintiff is to appear at as noticed by Defendants within ten days of notice of this order.

            Defendants’ request for sanctions is GRANTED as modified.

            Plaintiff’s counsel of record, Lauren A. Dean Esq. is ordered to pay monetary sanctions in the amount of $3,000.00 to Defendants by and through counsel, within thirty (30) days of notice of this order.

The Court reminds the parties that pursuant to the Court’s March 28, 2023 minute order, the Court has advanced Plaintiff’s motion to compel Lockheed Martin’s further responses to Plaintiff’s demands for production, set fourteen, and Plaintiff’s motion to compel Lauren (Ingle) Lyons’s deposition to April 10, 2023.  The parties must comply with the briefing schedule for both motions set forth in the March 28, 2023 minute order.  In addition, the parties must comply with the March 28, 2023 minute order regarding a further meet and confer and a joint statement for all motions in limine.

Moving Parties are to give notice and file proof of service of such.

DATED: April 3, 2023                                                           ___________________________

                                                                                          Elaine Lu

                                                                                          Judge of the Superior Court