Judge: Elaine Lu, Case: 20STCV20014, Date: 2023-05-09 Tentative Ruling

Case Number: 20STCV20014    Hearing Date: May 9, 2023    Dept: 26

Superior Court of California

County of Los Angeles

Department 26

Procedural Background

            On May 27, 2020, Plaintiff Medgar Parrish (“Plaintiff”) filed the instant employment discrimination action against Defendant City of Los Angeles (“Defendant”).  On October 16, 2020, Plaintiff filed the operative First Amended Complaint (“FAC”) against Defendant alleging six causes of action for (1) Age Discrimination in Violation of the Fair Employment and Housing Act (“FEHA”), (2) Disability Discrimination in Violation of FEHA, (3) Failure to Accommodate in Violation of FEHA, (4) Failure to Engage in the Interactive Process in Violation of FEHA, (5) Retaliation in Violation of FEHA, and (6) Failure to Prevent Discrimination in Violation of FEHA.  Trial is currently set for May 22, 2023.

            On April 21, 2023, Plaintiff filed the instant motion to compel Defendant’s further response to Special Interrogatories, Set Four (“SROGs”).  On April 25, 2023, Plaintiff also filed the instant motion to quash Defendant’s subpoenas of Plaintiff’s personnel records from LAUSD records, U.S.P.S., and from U.S. Postal Inspection Services.  On April 26, 2023, the Court granted Defendant’s ex parte application in part and advanced both hearings to be heard on May 9, 2023.  (Minute Order 4/26/23.)  On May 3, 2023, Defendant filed oppositions to the instant motions.  On May 5, 2023, Plaintiff filed replies.

Allegations of the Operative Complaint

The FAC alleges that:

“Plaintiff, who was 57 years old at the time of the filing of this complaint, began working for Defendant in the Los Angeles Department of Transportation (‘LADOT’) on or around January 18, 2000 as a Traffic Officer II. Between 2004 and 2006, Plaintiff had operations on both his left and right hips due to work-related injuries. After his surgeries, Plaintiff’s doctors gave him restrictions for his disabilities, such as limits on the length of time he could stand and walk.”  (FAC ¶ 8.)  In 2010, as an accommodation for Plaintiff’s disabilities, LADOT placed Plaintiff as an Assistant Clerk.  (FAC ¶ 9.) 

As an accommodation in 2012, LADOT transferred Plaintiff into the position of Videographer /Photographer.  (FAC ¶ 9.)  This position involved “cleaning up” LADOT’s negative media publicity and maintaining a positive social media presence by documenting events, such as groundbreaking for new construction, for uploading to YouTube and other social media platforms.  (FAC ¶ 10.)  On June 22, 2017, Plaintiff suffered a heart attack and was place[d] on leave by his doctors for three weeks to recover.  (FAC ¶ 11.)  “On or about July 7, 2017, while Plaintiff was still recovering, LADOT asked Plaintiff to resign his permanent position and accept a temporary position with LADOT. Plaintiff refused to resign.”  (FAC ¶ 11.)

“In or around September 2018, an anonymous complaint was made to LADOT’s Human Resources Department (‘HR’) stating that Plaintiff had been sexually harassed by Plaintiff’s supervisor in the men’s bathroom. HR subsequently interviewed Plaintiff[,] and Plaintiff stated that he did not believe he had been sexually harassed and that he had not made the complaint. Nevertheless, Plaintiff’s supervisor immediately resigned.”  (FAC ¶ 13.) 

“Shortly thereafter, on or around November 2, 2018, LADOT told Plaintiff that his restrictions could no longer be accommodated in the position of Videographer / Photographer, despite Plaintiff having worked in this position since 2012. Shortly after removing Plaintiff from his position as Videographer / Photographer, LADOT replaced Plaintiff with a substantially younger employee who had less experience and qualifications than Plaintiff.”  (FAC ¶ 14.) 

“In or around October 2018, LADOT offered Plaintiff a position as a Senior Administrative Clerk. Plaintiff accepted the position. However, despite Plaintiff’s acceptance of the position, LADOT refused to allow him to begin working in the Senior Administrative Clerk position. In or around August 2019, LADOT again offered Plaintiff a position as Senior Administrative Clerk, and Plaintiff accepted the position. However, once again, LADOT refused to allow him to return to work. Since November 2018, LADOT has refused to allow Plaintiff to return to work.”  (FAC ¶ 15.)

Legal Standard

Motion to Quash

Where the witness whose deposition is sought is not a party, a subpoena must be served to compel his or her attendance, testimony, or production of documents.  (CCP § 2020.010(b).) A deposition subpoena may request (1) only the attendance and testimony of a deponent, (2) only the production of business records for copying, or (3) the attendance and testimony, as well as the production of business records.  (CCP § 2020.020.)  “A deposition subpoena that commands only the production of business records for copying shall designate the business records to be produced either by specifically describing each individual item or by reasonably particularizing each category of item . . .”  (CCP § 2020.410(a).)  The court, upon motion or the court’s own motion, “may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders.”  (CCP § 1987.1(a).)  In addition, the court may make any other orders as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.”  (CCP § 1987.1(a).) 

Pursuant to Code of Civil Procedure section 2017.010:

Unless otherwise limited by order of the court…any party may obtain discovery regarding any matter, 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.  Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action.  Discovery may be obtained of the identity and location of persons having knowledge of any discoverable matter, as well as of the existence, description, nature, custody, condition, and location of any document, electronically stored information, tangible thing, or land or other property.

(Ibid.)

“‘[F]or discovery purposes, information is relevant if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement’ and ‘[a]dmissibility is not the test and information, unless privileged, is discoverable if it might reasonably lead to admissible evidence.’  These rules are applied liberally in favor of discovery . . . and (contrary to popular belief) fishing expeditions are permissible in some cases.”  (Cruz v. Superior Court (2004) 121 Cal.App.4th 646, 653, [internal citations omitted].) 

Motion to Compel Further Responses to Special Interrogatories

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 – Motion to Quash

            Here, on April 14, 2023, Plaintiff was served with deposition subpoenas that Defendant had issued to Plaintiff’s previous employers in the 1980s and 1990s.  (Marx Decl. ¶ 3, Exh. A.)  The subpoenas seek production of Plaintiffs employment records by May 16, 2023.  (Marx Decl. ¶ 4, Exh. A.)  Plaintiff objects on numerous grounds, including the grounds that the subpoenas are barred by the discovery cutoff.  The Court agrees.

            Pursuant to Code of Civil Procedure section 2024.020, the right to complete any discovery as a matter of right is cutoff thirty days before trial.  (CCP § 2024.020(a).)  At the hearing on April 26, 2023, Defendant argued that it is the date on which the deposition subpoenas were served – not the production date – that governs timeliness.[1] This argument is unavailing. Code of Civil Procedure section 2024.010 makes clear that “[d]iscovery is considered completed on the day a response is due or on the day a deposition begins.”  (Id., [italics added].)  Here, the deposition is noticed for May 16, 2023, which is well past the discovery cut off.

            As the subpoenas bear production dates well past the discovery cut off, Plaintiff’s motion to quash is GRANTED.

Sanctions

Plaintiff requests sanctions of $1,850.00 against Defendant and its counsel of record.  However, no basis for awarding sanctions is identified other than that the instant motion is brought under Code of Civil Procedure section 1987.1.

“[I]n making an order pursuant to motion made under subdivision (c) of Section 1987 or under Section 1987.1, the court may in its discretion award the amount of the reasonable expenses incurred in making or opposing the motion, including reasonable attorney's fees, if the court finds the motion was made or opposed in bad faith or without substantial justification or that one or more of the requirements of the subpoena was oppressive.”  (CCP § 1987.2(a).)  “An award for sanctions based on bad faith generally requires a subjective element of bad faith.”  (Evilsizor v. Sweeney (2014) 230 Cal.App.4th 1304, 1311.)  “‘Substantial justification’ means ‘that a justification is clearly reasonable because it is well grounded in both law and fact.’ [Citation.]”  (Id. at p.1312.) 
            Here, the only basis identified for sanctions is “for improperly demanding Plaintiff’s personnel records and wasting Court’s precious time.”  (Motion to Quash at p.9:6.)  However, Plaintiff fails to show that Defendant opposed the instant motion in bad faith, that Defendant opposed the instant motion without substantial justification, or that the subpoenas were oppressive.  Defendant presented some – albeit unmeritorious – legal arguments for opposing the instant motion and the subpoenas were not oppressive as Plaintiff did place his prior employment record at issue by bringing the instant action.  Accordingly, Plaintiff’s request for sanctions is DENIED.

Discussion – Motion to Compel Further Responses to Special Interrogatories, Set Four

            Plaintiff moves to compel Defendant’s further response to SROGs Nos. 18 and 20. 

SROG No. 18

            “IDENTIFY the name, date of hire, job title, current age, and date of termination (if applicable) of each employee YOU employed during the time period of January 1, 2014 to the present.”  (SROG No. 18.)

            “Defendant restates and incorporates its Preliminary Statement and General Objections as though fully set forth in this Response. Defendant further objects on the grounds that it seeks information about non-parties to this action. The City is not authorized to and cannot waive these non-parties’ privacy rights protected under the U.S. and California State Constitutions. It seeks information that is not relevant to the subject matter of this litigation and not reasonably calculated to lead to the discovery of admissible evidence. Defendant further objects on the grounds that it is overbroad, unduly burdensome and harassing as to time and scope, and not proportional to plaintiff’s need for the information (which has not been establishes) as it asks for each employee hired by the City of Los Angeles for over twelve years which would require defendant to prepare a compilation of data including forty-four (44) City Departments from the Airports to the Zoo, with over 1,200 job classifications, and averaging more than 50,000 employees. The Department of Transportation alone has over sixty job classifications. It asks for documents not relevant to this litigation nor reasonably calculated to lead to the discovery of admissible evidence in that it seeks employment information for positions not related to the alleged conduct in this lawsuit. Defendant further objects to this Interrogatory to the extent that it is vague and ambiguous and the City is unable to determine the meaning of Plaintiff’s request. Because of the nature of the form of the request, City makes no representation that the scope of the request responded to is the same as that contemplated by Plaintiff. Without waiving the objections, defendant responds: Defendant cannot respond to this interrogatory as phrased. In spirit of discovery, defendant responds limiting its response to all active employees only, and it does not include part time personnel, assigned to Department of Transportation, Public Information Office (PIO) from 2014 to the present as follows: Information was obtained from Organizational charts, and system and is as accurate as possible.

            Patricia Restrepo, Principal Project Coordinator, date hired 12/1/2006; a forty-something years of age person at date of hire;

            Andrew Peers, Management Analyst; date hired 6/1/2015, a thirty-something years of age person at date of hire;

            Jesse Hernandez, Sr. Admin Clerk; date hired 2/22/2000, a twenty-something years of age person at the date of hire;

            Froylan Medina, Admin Clerk, date hired 11/6/2000, a forty-something years of age person at date of hire;

            Benny Wong, Administrative Hearing Officer, date hired 9/9/2015; a twenty-something years of age person at date of hire;

            Chun Leung, Transportation Engineering Associate (TEA) II, date hired 8/5/2006; a twentysomething years of age person at date of hire;

            Nora Frost, Public Relations, Specialist II, date hired 2/20/2018 to 2/1/2020; a thirty-something years of age person at hire 38 years old;

            Arlet Shirvanian, Graphic Designer II, date hired 10/2/2017 to 6/8/2019; a forty-something years of age person at date of hire; Medgar Parrish, Traffic Officer II, date hired 1/18/2000; a 37 years old person at age of hire;

            Oliver Hou, TEA II, date hired 7/1/2010; a twenty-something years of age person at date of hire;

            Makenzi Rasey, TPA II, date hired 3/6/2017; a thirty-something years of age person at date of hire;

            Lalageh Mehrabian, Graphic Designer II, date hired 6/9/2011, a teenage person who was of majority at date of hire;

            Joan Hsu, TEA II, date hired 3/17/2016; a twenty-something years of age person at date of hire;

            Jennifer Le, Systems Analyst, date hired 11/22/1999, a twenty-something years of age person at date of hire;

            Toney Kim, Applications Programmer, date hired 4/12/2020, a forty-something years of age person at date of hire;

            Mark Twu, Graphics Designer II, date hired 31/1987; a thirty-something years of age person at date of hire;

            Jose Almaguer-Delgado, TEA II, date hired 11/23/2008 to 9/7/2014, a twenty-something years of age person at date of hire;

            Adam Driscoll, TEA II, date hired 10/16/2005; a twenty-something years of age person at date of hire;

            Alvin Chong, Management Assistant, date hired 3/7/2017; a twenty-something years of age person at date of hire;

            Alexander Molina, Systems Analysts, date hired 7/25/2016, a thirty-something years of age person at date of hire;”  (Response to SROG No. 18.)

            Third Party 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, Defendant fails to substantiate the claimed privacy interest.  While there is some privacy interest in current and former employees name, date of hire, job title, current age, and date of termination, such information is not an obvious invasion of an interest fundamental to personal autonomy or a compelling interest.  Rather, in light of the relatively minor invasion of employees names, job titles, dates of hire, and dates of separation, only some relevance is required.  As noted at the hearing on April 26, 2023, the only additional information Plaintiff is requesting is: (1) identification of the numeric age (i.e. more precise identification than “a twenty-something years of age person”) of each of the employees at the time of their hire; and (2) identification of employees who were assigned to the Department of Transportation, Public Information Office (PIO) from 2014 to the present who are no longer active employees (i.e. who have left their employment with the City for any reason).  Plaintiff claims age discrimination.  Thus, evidence indicating a similar pattern of age discrimination in the department in which Plaintiff worked would be relevant.  Accordingly, Defendants’ objection based on third party privacy is overruled.

            Remaining Objections

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

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

            Here, Plaintiff claims age discrimination.  Evidence indicating a similar pattern of age discrimination in the department in which Plaintiff worked would be relevant.  Though identification of all of Defendants’ employees would be patently absurd and overbroad, Plaintiff has agreed to limit SROG No. 18 to employees and former employees in the Department of Transportation, Public Information Office (PIO) from 2014 to the present, which would not be overbroad.

SROG No. 20

            “IDENTIFY the name, date of hire, job title, and current age of all employees that performed PLAINTIFF’s job duties following his last day working for YOU.”  (SROG No. 20.)

            “Defendant restates and incorporates its Preliminary Statement and General Objections as though fully set forth in this Response. Defendant further objects on the grounds that it is overbroad, unduly burdensome and harassing as to time. It seeks information about non-parties to this action. The City is not authorized to and cannot waive these non-parties’ privacy rights protected under the U.S. and California State Constitutions. It is vague and ambiguous as to “job duties” since plaintiff was not performing the duties of his position of Traffic Officer, and the City is unable to determine the meaning of Plaintiff’s request. Because of the nature of the form of the request, City makes no representation that the scope of the request responded to is the same as that contemplated by Plaintiff. It seeks information that is not relevant to the subject matter of this litigation and not reasonably calculated to lead to the discovery of admissible evidence. Without waiving the objections the objections, and in spirit of discovery, defendant responds as follows:

            Defendant incorporates its response to Special Interrogatory 18 herein by reference City employees that reported to PIO from 2014 to present.

            On or about September 2018 and continuing thereafter, the following part time employees were employed by LADOT’s Public Information Office performing job duties commensurate with some of those performed by Plaintiff during his assignment with the Public Information Office:

            Emmanuel Solis, hired on or about August or September 2018, was employed as a Digital Project Assistant. Solis was a twenty-something years of age person at the time of hiring. He is not currently employed with the City of Los Angeles.

            Jonathan D. Rogers, hired on or about July 2019, was employed as a Community and Administration Support Workers III (CASW). Rogers was a thirty-something years of age person at the time of hiring. He is not currently employed with the City of Los Angeles.

            Alicia McCoy, hired on or about July 2019, was and remains employed as a CASW III. McCoy was a twenty-something years of age person at the time of hiring.

            Diamond Smith, hired on or about February 2019, was employed on a part-time/as-needed basis as a Project Assistant. Smith was a twenty-something years of age person at the time of hiring. She is not currently employed with the City of Los Angeles.

            Jacob Sigala, hired on or about February 2020, was and remains employed on a part-time/as needed basis as a Project Assistant. Sigala was a thirty-something years of age person at the time of hiring. Sebastian Nicolau, hired on or about February 18, 2020, was and remains employed on a part-time/as-needed basis as a Project Assistant. Nicolau was twenty-something years of age person at the time of hiring.”  (Response to SROG No. 20.)

            Objections

            As with SROG No. 18, Defendant contends that the request is overbroad, burdensome, and violates third party privacy.  As to third party privacy, the information requested is not a severe or major invasion of third party privacy.  At best, Plaintiff’s request involves a minor invasion to privacy.  Here, Plaintiff claims age discrimination.  Thus, evidence indicating a similar pattern of age discrimination in the department in which Plaintiff worked would be sufficiently relevant to overcome this minor invasion of the third parties’ privacy interests.  Moreover, as noted at the April 26, 2023 hearing, Plaintiff made clear that with regard to special interrogatory (SROG) 20, the only additional information Plaintiff is requesting is: (1) identification of the numeric age (i.e. more precise identification than “a twenty-something years of age person”) of each of the employees who have performed Plaintiff’s job duties following his last day working for Defendant.  (Minute Order 4/26/23.)  Given that Plaintiff seeks only this limited additional information, a further response without objection as so limited is required.

Sanctions

Here, Plaintiff requests sanctions of $2,760.00 against Defendant and its counsel of record. 

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, sanctions are not warranted.  Though slightly deficient, the original responses provided a majority of the information sought and only omitted former employees of the Department of Transportation, Public Information Office (PIO) and the specific age of each employee – which could be roughly estimated from the response at issue.  Defendant provided the information sought to Plaintiff in a spreadsheet form after the instant motion was filed.  (Park Decl. ¶ 7, Exh. 7.)  Moreover, Plaintiff filed the instant motion during a period that Defense Counsel had given prior notice that she would be unavailable.  (Park Decl. ¶ 8, Exh. 8.)  Accordingly, given the totality of the circumstances, sanctions are not warranted.

Conclusion and ORDER

Based on the foregoing, Plaintiff Medgar Parrish’s motion to quash subpoenas is GRANTED.

Plaintiff Medgar Parrish’s motion to compel Defendant City of Los Angeles’ further response to Special Interrogatories, Set Four is GRANTED.

Defendant is order to provide verified, further, code compliant responses to Special Interrogatories, Set Four, interrogatories 18 and 20 without objection within 5 days of notice of this order.  Interrogatory 18 is to be limited to current and former employees of the Department of Transportation, Public Information Office (PIO).

Plaintiff’s request for sanctions is DENIED.

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

DATED:  May 9, 2023                                                           ___________________________

Elaine Lu

                                                                                          Judge of the Superior Court