Judge Elaine Lu, Case 20STCV06099 2023-04-10 Tentative Ruling

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 20, 2023, Plaintiff filed the instant motion to compel the deposition of Lauren (Ingle) Lyons. On March 21, 2023, Plaintiff filed an ex parte application to advance the hearing on the instant motion. On March 28, 2023, the Court on its own motion advanced the instant motion to April 10, 2023. (Minute Order 3/28/23.) On March 30, 2023, Defendant Lockheed filed an opposition. On April 3, 2023, Plaintiff filed a reply.

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.)

“Any party may obtain discovery . . . by taking in California the oral deposition of any person, including any party to the action. The person deposed may be a natural person, an organization such as a public or private corporation, a partnership, an association, or a governmental agency.” (CCP § 2025.010.)

Code of Civil Procedure § 2025.450(a) provides: “If, after service of a deposition notice, a party to the action . . . , without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document . . . described in the deposition notice, the party giving the notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document . . . described in the deposition notice.”

Code of Civil Procedure § 2025.450(b) provides: “A motion under subdivision (a) shall comply with both of the following:

Code of Civil Procedure § 2025.450(c) provides, “(1) If a motion under subdivision (a) 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.”

Under Code of Civil Procedure § 2023.030(a), “[t]he court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct. . . . If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction 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.” Failing to respond or to submit to an authorized method of discovery is a misuse of the discovery process. (CCP § 2023.010(d).)

Plaintiff moves to compel the deposition of Lauren (Ingle) Lyons, a current employee of Defendant Lockheed. On October 28, 2022, Plaintiff sought Ingle’s deposition for the second week of November 2022. (Dean Decl. ¶ 14, Exh. 2.) Defense Counsel indicated that they were preparing for another trial and did not anticipate being available for depositions until December 2022. (Dean Decl. ¶ 15, Exh. 2.) On November 15, 2022, Plaintiff followed up about a deposition and was informed that Lyons was on a leave of absence through the rest of the year. (Dean Decl. ¶ 16, Exh. 1.) On January 26, 2023, during a telephone conference with Defense Counsel, Plaintiff was informed that Lyons was still on a leave of absence. (Dean Decl. ¶ 22.) On March 2, 2023, Plaintiff noticed a deposition for Lyons for March 13, 2023. (Dean Decl. ¶ 25, Exh. 5.) On March 10, 2023, Defendant Lockheed served objections. (Dean Decl. ¶ 26, Exh. 6.)

Objections to a notice of the deposition are very limited and may only pertain to errors or irregularities in the deposition notice itself. (CCP § 2025.410, [“Any party served with a deposition notice that does not comply with Article 2 (commencing with Section 2025.210) waives any error or irregularity unless that party promptly serves a written objection specifying that error or irregularity at least three calendar days prior to the date for which the deposition is scheduled, on the party seeking to take the deposition and any other attorney or party on whom the deposition notice was served.].) Article 2 which consists of Code of Civil Procedure §§ 2025.210-2025.295 provide specific requirements that a deposition notice must satisfy.

Here, Defendant Lockheed objected on the ground that the deposition was unilaterally set and that Lyons was not available. The unilateral setting of a deposition under Los Angeles County Superior Court Rule, Local Rule 3.26 is not a basis for an objection to the notice as all local rules are preempted as to discovery. (Cal. Rules of Court, Rule 3.20(a).)^{^[1]}

The unavailability of Lyons could potentially serve as a valid basis for objection. However, Defendant Lockheed fails to substantiate its claim that Ingle is still unavailable. In memorandum, Defendant Lockheed argues that Lyons “is currently employed by Lockheed Martin but she is now on an approved leave of absence under the California Family Rights Act (‘CFRA’).” (Opp. at p.2:17-18.) However, no evidence is submitted to support this claim. The only evidence submitted with the opposition is the declaration of Defense Counsel who states that at some point after October 28, 2022, Defense Counsel “inquired about Ms. Lyons’ availability and learned that she was on a leave of absence, which remains the case.” (Davidson Decl. ¶ 5.) It is apparent that Defense Counsel lacks first-hand knowledge as to Ingle’s availability or unavailability; she neither supervises nor works with Ingles, and she does not identify any other basis for her to serve as percipient witness in this regard. Defense Counsel also fails to provide any evidence as to what the basis for the leave of absence was or even who informed Defense Counsel of this. Defendant need not provide medical records, but Defendant should at least provide evidence of the nature of the leave. Even presuming that Lyons was on CFRA leave – which is not supported by evidence – it seems that such leave would most likely have already expired; the Court notes that CFRA provides only 12 weeks of leave. (Gov. Code, § 12945.2(a).) Notably, Defense Counsel fails to provide any evidence that Lyons is still on leave. There is no indication of when Defense Counsel’s most recent conversation with Ingle’s supervisor occurred or when Ingle is anticipated to return to work.

Accordingly, Defendant has failed to provide a sufficient basis for the Court to conclude that Lyons is currently unavailable for deposition.

As to Defendant’s objections to the accompanying document production, objections are unnecessary and inapplicable to the notice. A request for production of documents in a deposition notice merely provides that documents identified are to be produced by the deponent at the deposition. (CCP § 2025.220(a)(4).) Thus, a request for documents in conjunction with a deposition notice is not the equivalent of a Request for production of documents under Code of Civil Procedure section 2031.010 et seq. as objections are not necessary as an objection to the notice. In fact, there is no statutory basis for any written response to the request for production. Rather, objections are timely raised during the deposition or are not waived. (See CCP § 2025.460.) Thus, a request to compel documents under the deposition subpoena is premature as no deposition has yet occurred. Rather, if documents are not produced at the deposition, Plaintiff may then move to compel Defendant to produce the documents if such documents are somehow vital to the deposition or instant action at the risk of sanctions. (See CCP § 2025.480; see also CCP §2025.460(e).)

Thus, the objections to the categories of documents to be produced are premature. Plaintiff’s motion to compel Lyons deposition is GRANTED.

Plaintiff requests sanctions against Defendant Lockheed and Defense Counsel for $7,585.00 to compensate Plaintiff for bringing the instant motion.

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.

Given the simplicity of the instant motion, the amount requested is excessive. Especially given Plaintiff’s Counsel claimed experience and hourly rate. Accordingly, based on the totality of the circumstances the Court awards Plaintiff sanctions of $2,500.00.

Defendant Lockheed Martin Corporation and its attorney of record, Africa Davidson of Apex Employment Law, jointly and severally, are ordered to pay sanctions to Plaintiff by and through counsel of record, in the amount of $2,500.00, within 30 days.

Based on the foregoing, Plaintiff Daniel Girch’s motion to compel the deposition of Lauren (Ingle) Lyons is GRANTED.

Defendant Lockheed Martin is ordered to produce Lauren Lyons for a deposition, remotely or with any other necessary precautions, within ten (10) days of notice of this order at a date and time noticed by Plaintiffs.

[1] While not a basis for objection to the notice of a deposition, this could be a potential basis for sanctions as misuse of discovery. (CCP § 2023.010.)

Superior Court of California

County of Los Angeles

Department 26

On March 17, 2023, Plaintiff filed the instant motion to compel Defendant Lockheed’s further response to request for production, set fourteen. On March 21, 2023, Plaintiff filed an ex parte application to advance the hearing on the instant motion. On March 28, 2023, the Court on its own motion advanced the instant motion to April 10, 2023. (Minute Order 3/28/23.) On March 30, 2023, Defendant Lockheed filed an opposition. On April 3, 2023, Plaintiff filed a reply.

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

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

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

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

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

“Lauren Ingle’s performance evaluation for the year 2018 in native format.” (RPD No. 217.)

“Any and all DOCUMENTS RELATING TO the performance rating of Lauren Ingle for the year 2018, including but not limited emails and/or deleted emails with Lauren Ingle’s new manager about Lauren Ingle’s review.” (RPD No. 218.)

“DOCUMENTS evidencing write-ups, complaints, comments, criticisms or warnings concerning Sara Marinov during her employment with YOU.” (RPD No. 224.)

“DOCUMENTS evidencing write-ups, complaints, comments, criticisms or warnings concerning Danielle Bartos during her employment with YOU.” (RPD No. 225.)

“DOCUMENTS evidencing write-ups, complaints, comments, criticisms or warnings concerning Darren Hill during his employment with YOU.” (RPD No. 226.)

“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 [the requested documents].” (Responses to RPDs No. 217-218, 224-226.)

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, Darren Hill, Sara Marinov, and Lauren Ingle are all third parties to the instant action. Plaintiff’s requests for the personnel files of four third-party individuals implicates their right of privacy. The burden falls on Plaintiff to show some relevance of the personnel files to overcome this fundamental privacy interest.

As to Danielle Bartos and Darren Hill, the operative complaint alleges that Bartos and Hill were Lockheed Ethics Officer who, along with Ethics Officer 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.) The SAC does not include any allegation as to Sara Marinov or Lauren Ingle.

As to Lauren Ingle, Plaintiff asserts that the discovery Plaintiff seeks regarding Ingle’s 2018 Performance Review is relevant because “[d]uring the investigation leading to the termination of Plaintiff’s employment, Ingle asserted Plaintiff issued her a lower rating than the previous year in retaliation for leaving his department [and] … Ingle’s statement was used to support a conclusion that Plaintiff engaged in retaliation in violation of Lockheed’s policies.” (Separate Statement p.4:15-26.) Because the claimed basis for Plaintiff’s termination was, in part, based on Ingle’s allegation that Plaintiff retaliated against Ingle in her 2018 performance review, Ingle’s 2018 performance review is relevant to the instant action. Defendant Lockheed does not dispute this claim in the separate statement. Nor does Defendant Lockheed show that the invasion of privacy in providing Ingle’s 2018 Performance Review and related documents would involve a particularly serious invasion of privacy. Weighing Ingle’s privacy interest in her 2018 Performance Review against Plaintiff’s need for this discovery in light of the allegations, the Court finds that production of the 2018 Performance Review is warranted.

As to the remaining individuals, Plaintiff contends that Danielle Bartos, Sarah Marinov, and Darren Hill were all involved with the investigation which led to Plaintiff’s termination. The mere fact that Bartos, Marinov, and Hill were part of the investigation into allegations of impropriety against Plaintiff does not justify the scope of the discovery Plaintiff seeks. By way of RPDs Nos. 224-226, Plaintiff seeks all documents evidencing write-ups, complaints, comments, criticisms or warnings concerning Bartos, Marinov, and Hill. The possibility that unrelated write-ups, complaints, comments, criticisms or warnings may have been made against Bartos, Marinov, and Hill is not inherently relevant to the claims Plaintiff makes in the SAC. Rather, only complaints related to the conduct Plaintiff alleges or conduct of a similar nature would be relevant. Plaintiff fails to provide any explanation as to why all write-ups, complaints, comments, criticisms or warnings concerning Bartos, Marinov, and Hill are relevant to the instant action. Moreover, the authority Plaintiff cites 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 an attorney acting in bad faith in objecting to a discovery request on privacy and relevance grounds when the file had been lost and the attorney had never seen the file. (Id. at p.991, Fn 5.) Bihun is irrelevant to the instant action because “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 upon which Plaintiff relies, 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.

“Any and all DOCUMENTS which in any way RELATE to any complaint(s), charges, report(s) or allegation(s), formal or informal, of retaliation, discrimination or harassment which were made by any PERSON against Danielle Bartos.” (RPD No. 219.)

As with the above requests for production, Defendant Lockheed objects based on privacy, but Lockheed also substantively responds as follows:

“Subject to, and without waiving the foregoing objections, Lockheed hereby produces a copy of the Complaint of the only other action in which Danielle Bartos has been named.” (Response to RPD No. 219.)

“Subject to, and without waiving the foregoing objections, and limiting its response to publicly available information, Lockheed responds that Mr. Hill is not the subject of any agency charge or a party in any litigation relating to retaliation, discrimination or harassment.” (Response to RPD No. 220.)

In contrast to the situation for RPDs No. 224-226, discussed above, whether reports of retaliation, discrimination or harassment have been made against Hill and Bartos is relevant to Plaintiff’s claims, including failure to prevent discrimination, retaliation and harassment. Moreover, Defendant Lockheed fails to show that the privacy interest implicated in such complaints that outweighs Plaintiff’s need for this discovery. Accordingly, a further, full response to RPDs No. 219-220 is warranted.

Further, Defendant’s substantive responses are not code compliant. Defendant’s responses fail to indicate whether Plaintiff’s RPDs No. 219-220 “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.) Defendant Lockheed also fails to “[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).) Accordingly, a further response is warranted as to RPDs Nos. 219-220.

Plaintiff requests sanctions against Defendant Lockheed and Defense Counsel for $8,250.00 to compensate Plaintiff for bringing the instant motion.

For a motion to compel further responses, “[t]he court shall impose a monetary sanction … against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to [request for production], unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (CCP § 2031.300(c), [italics added].) Further, it is an abuse of discovery to make an evasive response or make unsubstantiated objections to discovery. (CCP § 2023.010(e)-(f).)

Here, the Court finds that sanctions are warranted, but the amount requested is excessive, especially in light of the mixed outcome of the motion. The Court finds that Plaintiff reasonably incurred $3,000.00 of attorney’s fees in pursuing the instant motion. Based on the totality of the circumstances the Court awards Plaintiff sanctions of $3,000.00.

Based on the foregoing, Plaintiff Daniel Girch’s motion to compel a further response to Request for Production, Set Fourteen is GRANTED IN PART.

Defendant Lockheed Martin is ordered to serve verified, further, code complaint responses to Requests 217, 218, 219, and 220 – without objection – and concurrently produce responsive documents within five (5) days of notice of this order.