Judge Elaine Lu, Case Number: 22STCV05443, Date: 2023-08-04 Tentative Ruling

On February 14, 2022, Plaintiff Nicole Swainston (“Plaintiff”) filed the instant wrongful termination action against Defendants Kaiser Foundation Hospitals, Inc. (erroneously sued as Kaiser Foundation Health Plan, Inc.) (“KFH”) and Glen Har (jointly “Defendants”). The complaint asserts thirteen causes of action for (1) Sex Discrimination in Violation of the Fair Employment and Housing Act (“FEHA”), (2) Disability Discrimination in Violation of FEHA, (3) Failure to Engage in the Interactive Process in Violation of FEHA, (4) Failure to Accommodate in Violation of FEHA, (5) California Family Rights Act (“CFRA”) Interference, (6) Retaliation in Violation of FEHA, (7) Sexually Hostile Work Environment in Violation of FEHA, (8) Failure to Prevent Harassment, Discrimination, and Retaliation in Violation of FEHA, (9) Wrongful Termination in Violation of Public Policy, (10) Violation of Labor Code sections 98.6 and 1102.5, (11) Violation of Labor Code sections 6310 and 6311, (12) Violation of Labor Code sections 226.7 and 512, and (13) Violation of Labor Code sections 510, 1194, 1198 and 1199.

On September 25, 2023, Defendant KFH filed the instant motion to compel Plaintiff’s further response to Request for Production of Documents, Set One (“RPDs”). On January 24, 2024, Plaintiff filed an opposition. On January 30, 2024, Defendant KFH 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.

Defendant KFH seeks to compel Plaintiff’s further response to RPDs No. 1-40, and 44.

Pursuant to Code of Civil Procedure section 2031.310(b)(2) a motion to compel further responses to a request for production “shall be accompanied by a meet and confer declaration under Section 2016.040.” (CCP § 2031.310(b)(2).) “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.) “The level of effort at informal resolution which satisfies the ‘reasonable and good faith attempt’ standard depends upon the circumstances. In a larger, more complex discovery context, a greater effort at informal resolution may be warranted. In a simpler, or more narrowly focused case, a more modest effort may suffice. The history of the litigation, the nature of the interaction between counsel, the nature of the issues, the type and scope of discovery requested, the prospects for success and other similar factors can be relevant.” (Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 431.)

On March 15, 2022, Defendant KFH propounded the RPDs at issue on Plaintiff. (Rankin Decl. ¶ 3.) On September 14, 2022, Plaintiff served unverified responses to the RPDs at issue.[1] (Rankin Decl. ¶ 4.) In December 2022, Defense Counsel sent a meet-and-confer letter to Plaintiff’s Counsel regarding the deficiencies with Plaintiff’s discovery responses. (Rankin Decl. ¶ 8.) On March 9, 2023, the parties telephonically met and conferred, and Plaintiff’s counsel agreed to serve supplemental responses to the RPDs at issue. (Rankin Decl. ¶ 8.) On May 24, 2023, Plaintiff served unverified amended responses. (Rankin Decl. ¶ 10.)

On June 14, 2023, Defense Counsel sent another meet and confer letter regarding the deficiencies in Plaintiff’s unverified amended responses. (Rankin Decl. ¶ 11, Exh. F.) On July 31, 2023, the parties further met and conferred telephonically, and Plaintiff’s Counsel agreed to serve further amended responses. (Rankin Decl. ¶ 11.) On September 19, 2023, Plaintiff served verified further response to the RPDs at issue. (Rankin Decl. ¶ 14, Exh. H.) No privilege log has been produced by Plaintiff. (Rankin Decl. ¶ 14.)

The parties telephonically met and conferred multiple times. Further, Plaintiff does not contend in opposition that the meet and confer efforts were insufficient. Accordingly, given the nature of the dispute and the telephonic meet and confer efforts, the Court finds that Defendant KFH has sufficiently met and conferred.[2]

“Please produce all DOCUMENTS supporting YOUR first cause of action for sex discrimination as alleged in YOUR complaint.” (RPD No. 1.)

“Please produce all DOCUMENTS supporting YOUR second cause of action for disability discrimination as alleged in YOUR complaint.” (RPD No. 2.)

“Please produce all DOCUMENTS supporting YOUR third cause of action for failure to engage in the interactive process as alleged in YOUR complaint.” (RPD No. 3.)

“Please produce all DOCUMENTS supporting YOUR fourth cause of action for failure to accommodate as alleged in YOUR complaint.” (RPD No. 4.)

“Please produce all DOCUMENTS supporting YOUR fifth cause of action for CFRA interference as alleged in YOUR complaint.” (RPD No. 5.)

“Please produce all DOCUMENTS supporting YOUR sixth cause of action for retaliation as alleged in YOUR complaint.” (RPD No. 6.)

“Please produce all DOCUMENTS supporting YOUR seventh cause of action for hostile work environment as alleged in YOUR complaint.” (RPD No. 7.)

“Please produce all DOCUMENTS supporting YOUR eighth cause of action for failure to prevent harassment, discrimination, and retaliation as alleged in YOUR complaint.” (RPD No. 8.)

“Please produce all DOCUMENTS supporting YOUR ninth cause of action for adverse action in violation of public policy as alleged in YOUR complaint.” (RPD No. 9.)

“Please produce all DOCUMENTS supporting YOUR tenth cause of action for violation of Labor Code sections 98.6 and 1102.5 as alleged in YOUR complaint.” (RPD No. 10.)

“Please produce all DOCUMENTS supporting YOUR eleventh cause of action for violation of Labor Code sections 6310 and 6311 as alleged in YOUR complaint.” (RPD No. 11.)

“Please produce all DOCUMENTS supporting YOUR twelfth cause of action for violation of Labor Code sections 226.7 and 512 as alleged in YOUR complaint.” (RPD No. 12.)

“Please produce all DOCUMENTS supporting YOUR thirteenth cause of action for violation of Labor Code sections 510, 1194, 1198, and 1199 as alleged in YOUR complaint.” (RPD No. 13.)

“Please produce all COMMUNICATIONS referenced in YOUR complaint.” (RPD No. 14.)

“Please produce all DOCUMENTS supporting the allegation in paragraph 97 of YOUR complaint that ‘Ms Swainston cashed out her 401k plan after her move taking a stiff tax penalty on the funds to support herself monetarily.’” (RPD No. 16.)

“Please produce all DOCUMENTS reflecting any complaints YOU made to DEFENDANT regarding harassment.” (RPD No. 17.)

“Please produce all DOCUMENTS reflecting any complaints YOU made to DEFENDANT regarding Glen Har.” (RPD No. 18.)

“Please produce all DOCUMENTS reflecting any complaints YOU made to DEFENDANT regarding any of YOUR supervisors.” (RPD No. 19.)

“Please produce all COMMUNICATIONS between YOU and Valerie Bugnon regarding the allegations in YOUR complaint.” (RPD No. 22.)

“Please produce all COMMUNICATIONS between YOU and Felix Villegas regarding the allegations in YOUR complaint.” (RPD No. 24.)

“Please produce all DOCUMENTS supporting YOUR claim that YOU exhausted administrative remedies.” (RPD No. 30.)

“Please produce all DOCUMENTS relating to any requests YOU made for accommodation from DEFENDANT during YOUR employment.” (RPD No. 32.)

“Please produce all DOCUMENTS relating to any work restrictions given to YOU by any physician related to YOUR alleged medical condition and/or disability from January 1, 2012 to the present.” (RPD No. 34.)

“Please produce all DOCUMENTS supporting YOUR claim for economic damages as alleged in YOUR complaint.” (RPD No. 35.)

“Please produce all DOCUMENTS supporting YOUR claim for non-economic damages as alleged in YOUR complaint.” (RPD No. 36.)

“Please produce all DOCUMENTS supporting YOUR claim for punitive damages as alleged in YOUR complaint.” (RPD No. 37.)

“Please produce all DOCUMENTS reflecting YOUR efforts to mitigate your damages.” (RPD No. 44.)

“Objection: This request calls for information which is available to all parties equally, and is therefore oppressive and burdensome to Plaintiff. (Code Civ. Proc., § 2019.030, subd. (a)(1), Panzalas v. Superior Court (1969) 272 Cal.App.2d 499, Alpine v. Superior Court (1968) 259 Cal.App.2d 45.) This request is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive. (Code Civ. Proc., § 2019.030, subd. (a)(1).) This request invades Plaintiff’s right of privacy. (Pioneer Electronics (USA) Inc. v. Superior Court (2007) 40 Cal.4th 360, 370; San Diego Unified Port Dist. (1978) 20 Cal.3d 844, 855–856.) This request is overly broad and remote and calls for information not relevant to the subject matter of this action nor reasonably calculated to lead to the discovery of admissible evidence. (CBS v. Superior Court (1968) 263 Cal.App.2d 12, Deaile v. Gen’l Telephone (1974) 40 Cal.App.3d 841.) This question seeks information which is protected from disclosure by the attorney-client privilege. (Brown v. Superior Court (1963) 218 Cal.App.2d 430.) This question seeks information which is protected from disclosure by the attorney work-product privilege. (Id.) This request seeks to impermissibly invade the privacy of uninvolved third parties as well as Plaintiff in violation of the constitutions of California and the United States.

After a diligent search, Plaintiff will produce all responsive documents in Plaintiff’s possession and control, of which Plaintiff is aware, and which may relate to this request.

Investigation and discovery in this matter are continuing and not complete. Plaintiff reserves the right, but does not assume the obligation, to amend and/or supplement this response if and when the subsequent responsive information is discovered.” (Response to RPDs 1-19, 22, 24 30, 32, 34-37, 44.)

Objections based on “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’s response fails to identify any quantum of work required to respond to these requests. Similarly, Plaintiff’s opposition to the instant motion fails to identify the quantum of work required to respond to these requests so as to support an objection based on burden. Moreover, Plaintiff’s objection based on the documents being “equally available” to Defendant is nonsensical and clearly not applicable. Defendant has requested documents supporting Plaintiff’s claims and allegations in the complaint. As Defendant disputes Plaintiff’s claims and is not bringing said claims, Defendant would be unaware of every document supporting Plaintiff’s claims. It is Plaintiff’s obligation to identify and produce such documents.

“[A]ny party may obtain discovery regarding any matters, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” (CCP § 2017.010.) “[A]n implicit waiver of a party's constitutional rights encompasses only discovery directly relevant to the plaintiff's claim and essential to the fair resolution of the lawsuit.” (Vinson v. Superior Court (1987) 43 Cal.3d 833, 842.) 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].)

Here, all of the RPDs are plainly relevant as they seek documents in support of Plaintiff’s claims – i.e., RPDs No. 1-13 – and documents supporting Plaintiff’s allegations and prayer for damages in the complaint – i.e., RPDs 14-19, 22, 24 30, 32, 34-37, 44. Thus, the documents sought are plainly relevant to the complaint, and Plaintiff’s objections based on relevance are clearly unjustified.

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 asserting 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, Plaintiff’s response fails to specify how any of the above requests invade Plaintiff’s or unspecified third parties’ privacy rights. Similarly, Plaintiff fails to justify any privacy objections to these requests in the opposition. Moreover, each of the requests is directly relevant to Plaintiff’s claims. Accordingly, the privacy objections are unwarranted and unsupported.

“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.)

Here, given that Defendant KFH is requesting all documents in support of Plaintiff’s claims the requests could conceivably include documents that could be protected by attorney client privilege. However, Plaintiff has failed to provide any privilege log identifying what -- if any -- responsive documents Plaintiff is withholding on the basis of attorney client privilege/work product. To the extent that there are privileged documents, Plaintiff has not indicated which specific document are privileged. Plaintiff’s blanket assertion of privilege is insufficient. Plaintiff must produce a privilege log identifying what documents Plaintiff is withholding and enough factual information to support a prima facie claim of privilege. (See CCP § 2031.240(b)(1-2), [“b) If the responding party objects to the demand for inspection, copying, testing, or sampling of an item or category of item, the response shall do both of the following: (1) Identify 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. (2) Set forth clearly the extent of, and the specific ground for, the objection. If an objection is based on a claim of privilege, the particular privilege invoked shall be stated. If an objection is based on a claim that the information sought is protected work product under Chapter 4 (commencing with Section 2018.010), that claim shall be expressly asserted.”] [Italics added.].)

Accordingly, Plaintiff must provide a privilege log identifying which if any documents Plaintiff is withholding and enough information to demonstrate that the attorney client privilege/work product protects the document(s) identified.

Here, Plaintiff’s substantive responses provide that “[w]ithout waiving said objections, Plaintiff responds as follows: After a diligent search, Plaintiff will produce all responsive documents in Plaintiff’s possession and control, of which Plaintiff is aware, and which may relate to this request.” (Response to RPDs No. 1-19, 22, 24 30, 32, 34-37, 44, [Italics Added].)

Plaintiff has not waived any objections. Thus, it is unclear whether documents are being withheld based on such objections. Therefore, Plaintiff was required to identify the documents being withheld and the basis for the withholding. (See CCP § 2031.240(b)(1-2), [“b) If the responding party objects to the demand for inspection, copying, testing, or sampling of an item or category of item, the response shall do both of the following: (1) Identify 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. (2) Set forth clearly the extent of, and the specific ground for, the objection. If an objection is based on a claim of privilege, the particular privilege invoked shall be stated. If an objection is based on a claim that the information sought is protected work product under Chapter 4 (commencing with Section 2018.010), that claim shall be expressly asserted.”] [Italics added.].) If all responsive documents are being produced, the response must clearly identify as such, expressly stating that Plaintiff has produced all responsive documents in its possession, custody, or control and identify the responsive documents. (CCP § 2031.280.) Accordingly, further code complaint responses are required.

Defendant KFH contends that Plaintiff has not produced all responsive documents including text messages between Plaintiff and Iliana Bonilla. In an unrelated pending action between Bonilla and KFH – Bonilla v. Kaiser Foundation Hospitals, LASC Case No. 21STCV43442 – Bonilla, who is represented by Plaintiff’s Counsel (Brinegar Decl. ¶ 2), produced text messages between Plaintiff and Bonilla that Defendant KFH claims is relevant and responsive to certain RPDs. Given that there was some overlap in discovery, the parties stipulated that the discovery in the instant action and Bonilla v. Kaiser Foundation Hospitals, LASC Case No. 21STCV43442 could be used in both actions. (Rankin Decl. ¶ 2.)

In opposition, Plaintiff does not dispute that the text messages between Plaintiff and Bonilla produced in Bonilla v. Kaiser Foundation Hospitals, LASC Case No. 21STCV43442 are relevant or responsive to the propounded RPDs at issue. Rather, Plaintiff contends that “[t]he fact that the Parties agreed that discovery in the Bonilla case could be used in Plaintiff’s case, and vice-versa, does not mean that Plaintiff has all text messages in her possession, custody, or control that are in Bonilla’s possession, custody, or control. Cell phones are routinely replaced, and text messages are deleted all the time. Defendant has no evidence that Plaintiff’s verified response that she has produced all documents is not true.” (Opp. at p.3:23-27.)

The fact that Plaintiff may not have possession or custody of the text messages is not determinative or even relevant because Plaintiff must produce documents in her possession, custody, or control. Plaintiff’s Counsel’s demonstrated ability to produce the text messages between Plaintiff and Bonilla effectively demonstrates that said text messages are under Plaintiff’s control. Plaintiff’s Counsel is an agent of Plaintiff. (Rosenaur v. Scherer (2001) 88 Cal.App.4th 260, 283 [“attorneys are agents of their client…”].) As Plaintiff’s agent (Counsel) had custody of the responsive texts, these texts are under Plaintiff’s Control. (See e.g., Clark v. Superior Court of State In and For San Mateo County (1960) 177 Cal.App.2d 577, 579 [noting that documents in the possession, custody or control of defense counsel were thereby in the possession, custody, or control of defendants and reachable under a request for production].)

Therefore, the failure to produce and identify all responsive texts between Plaintiff and Bonilla is not compliant with the response that Plaintiff has produced all documents under her possession, custody, and control.

“Please produce all COMMUNICATIONS between YOU and Maria Attanasio regarding the allegations in YOUR complaint.” (RPD No. 23.)

“Please produce copies of all witness statements that YOU or YOUR agents have obtained from DEFENDANT’s employees regarding the allegations in YOUR complaint.” (RPD No. 25.)

“Please produce all DOCUMENTS related to YOUR alleged medical condition and/or disability.” (RPD No. 31.)

“Please produce all DOCUMENTS related to payments YOU received relating to YOUR disability and/or medical condition from January 1, 2012 to the present.” (RPD No. 33.)

“Please produce all DOCUMENTS reflecting YOUR application to any job between September 1, 2020 and the present.” (RPD No. 39.)

“Please produce all DOCUMENTS reflecting YOUR COMMUNICATIONS with any prospective employer between September 1, 2020 and the present.” (RPD No. 40.)

“Objection: This request invades Plaintiff’s right of privacy. (Pioneer Electronics (USA) Inc. v. Superior Court (2007) 40 Cal.4th 360, 370; San Diego Unified Port Dist. (1978) 20 Cal.3d 844, 855–856.) This request is overly broad and remote and calls for information not relevant to the subject matter of this action nor reasonably calculated to lead to the discovery of admissible evidence. (CBS v. Superior Court (1968) 263 Cal.App.2d 12, Deaile v. Gen’l Telephone (1974) 40 Cal.App.3d 841.) This question seeks information which is protected from disclosure by the attorney-client privilege. (Brown v. Superior Court (1963) 218 Cal.App.2d 430.) This question seeks information which is protected from disclosure by the attorney work-product privilege. (Id.) This request seeks to impermissibly invade the privacy of uninvolved third parties as well as Plaintiff in violation of the constitutions of California and the United States.

After a diligent search, Plaintiff will produce all responsive documents in Plaintiff’s possession and control, of which Plaintiff is aware, and which may relate to this request. Investigation and discovery in this matter are continuing and not complete. Plaintiff reserves the right, but does not assume the obligation, to amend and/or supplement this response if and when the subsequent responsive information is discovered.” (Response to RPDs No. 23, 25, 31, 33, 39-40.)

Here, RPDs 23, 25, 31, 33, and 39-40 are relevant as they seek documents supporting allegations in the complaint, documents from witnesses, documents involving Plaintiff’s alleged medical conditions while Plaintiff was working for KFH, and documents involving mitigating damages after Plaintiff was allegedly constructively terminated from KFH. Accordingly, for the same reasons set forth with RPDs No. 1-19, 22, 24 30, 32, 34-37, and 44, the objections are unsupported, and the substantive responses are improper.

“Please produce all COMMUNICATIONS between YOU and YOUR union relating to the allegations in YOUR complaint.” (RPD No. 20.)

“Please produce all COMMUNICATIONS between YOU and Iliana Bonilla regarding the allegations in YOUR complaint.” (RPD No. 21.)

“Objection: This request invades Plaintiff’s right of privacy. (Pioneer Electronics (USA) Inc. v. Superior Court (2007) 40 Cal.4th 360, 370; San Diego Unified Port Dist. (1978) 20 Cal.3d 844, 855–856.) This question seeks information which is protected from disclosure by the attorney-client privilege. (Brown v. Superior Court (1963) 218 Cal.App.2d 430.) This question seeks information which is protected from disclosure by the attorney work-product privilege. (Id.) This request seeks to impermissibly invade the privacy of uninvolved third parties as well as Plaintiff in violation of the constitutions of California and the United States.

Here, the RPDs No. 20-21 are relevant as they seek documents supporting allegations in the complaint. Accordingly, for the same reasons set forth with RPDs No. 1-19, 22, 24 30, 32, 34-37, and 44, the objections are unsupported, and the substantive responses are improper.

“Please produce copies of all witness statements that YOU or YOUR agents have obtained from DEFENDANT’s employees regarding the allegations in YOUR complaint.” (RPD No. 26.)

“Objection: This question seeks information which is protected from disclosure by the attorney-client privilege. (Brown v. Superior Court (1963) 218 Cal.App.2d 430.) This question seeks information which is protected from disclosure by the attorney work-product privilege. (Id.) This request seeks to impermissibly invade the privacy of uninvolved third parties as well as Plaintiff in violation of the constitutions of California and the United States.

Plaintiff currently has no documents responsive to this request in Plaintiff’s possession, custody, or control.

Here, RPD No. 26 is relevant as it seeks documents of witnesses’ statements. Accordingly, for the same reasons set forth with RPDs No. 1-19, 22, 24 30, 32, 34-37, and 44, the objections are unsupported.

Moreover, the substantive response is improper. A statement of an inability to comply requires Plaintiff to “affirm that a diligent search and a reasonable inquiry has been made in an effort to comply with that demand.” (CCP § 2031.230.) Further, the response must “also specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party.” (CCP § 2031.230.)

Here, no affirmation of a diligent search has been provided. Further, Plaintiff fails to specify whether “the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party.” (CCP § 2031.230.) Accordingly, a further response is required.

“Please produce all COMMUNICATIONS between YOU and the U.S. Equal Employment Opportunity Commission (‘EEOC’) regarding YOUR employment with DEFENDANT.” (RPD No. 27.)

“Please produce all COMMUNICATIONS between YOU and the Department of Fair Employment and Housing (‘DFEH’) regarding YOUR employment with DEFENDANT.” (RPD No. 28.)

After a diligent search, Plaintiff will produce all responsive documents in Plaintiff’s possession and control, of which Plaintiff is aware, and which may relate to this request.

Here, the RPDs No. 27-28 are relevant as they seek documents revealing whether Plaintiff fulfilled her requirement to exhaust administrative remedies. Accordingly, for the same reasons set forth with RPDs No. 1-19, 22, 24 30, 32, 34-37, and 44, the objections are unsupported, and the substantive responses are improper.

“Please produce all DOCUMENTS that YOU submitted to any government agency, including but not limited to the DFEH and the EEOC, that refer or relate to the allegations in YOUR complaint.” (RPD No. 29.)

“Objection: Objection: This request calls for information which is available to all parties equally, and is therefore oppressive and burdensome to Plaintiff. (Code Civ. Proc., § 2019.030, subd. (a)(1), Panzalas v. Superior Court (1969) 272 Cal.App.2d 499, Alpine v. Superior Court (1968) 259 Cal.App.2d 45.) This request is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive. (Code Civ. Proc., § 2019.030, subd. (a)(1).) This request invades Plaintiff’s right of privacy. (Pioneer Electronics (USA) Inc. v. Superior Court (2007) 40 Cal.4th 360, 370; San Diego Unified Port Dist. (1978) 20 Cal.3d 844, 855–856 This question seeks information which is protected from disclosure by the attorney-client privilege. (Brown v. Superior Court (1963) 218 Cal.App.2d 430.) This question seeks information which is protected from disclosure by the attorney work-product privilege. (Id.)

After a diligent search, Plaintiff will produce all responsive documents in Plaintiff’s possession and control, of which Plaintiff is aware, and which may relate to this request.

Here, the RPD No. 29 is relevant as it seeks documents supporting allegations in the complaint. Accordingly, for the same reasons set forth with RPDs No. 1-19, 22, 24 30, 32, 34-37, and 44, the objections are unsupported, and the substantive responses are improper.

“After a diligent search, Plaintiff will produce all responsive documents in Plaintiff’s possession and control, of which Plaintiff is aware, and which may relate to this request. Investigation and discovery in this matter are continuing and not complete. Plaintiff reserves the right, but does not assume the obligation, to amend and/or supplement this response if and when the subsequent responsive information is discovered.” (Response to RPD No. 38.)

Here, Plaintiff has not raised any objections and has stated that she will produce all documents in her possession custody or control. Defendant KFH fails to provide any reason why the response is non-compliant or why a further response is necessary. Accordingly, no further response is required as to this request.

Defendant KFH requests sanctions of $3,520.00 against Plaintiff and Plaintiff’s counsel to compensate KFH for the cost in bringing the instant motion. Defense Counsel claims an hourly billing rate of $400 and claims to have spent 6.8 hours preparing the instant motion and 4 hours reviewing the opposition, preparing the reply, and appearing at the hearing. (Rankin Decl. ¶ 18.)

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, given Plaintiff’s unsubstantiated objections and failure to produce all responsive documents does warrant some sanction. However, the requested amount is slightly excessive.

Accordingly, based on the totality of the circumstances the Court finds that $1,600.00 reasonably represents the fees and costs incurred. Plaintiff Nicole Swainston and her counsel of record – Lawrance Bohm, Kelsey Ciarimboli, and Kyle Pruner – are jointly and severally liable and ordered to pay sanctions to Kaiser Foundation Hospitals, Inc., by and through counsel of record, in the amount of $1,600.00, within 30 days of notice of this order.

Based on the foregoing, Defendant Kaiser Foundation Hospitals, Inc.’s motion to compel Plaintiff Nicole Swainston’s further response to Request for Production of Documents, Set One is GRANTED IN PART.

Plaintiff Nicole Swainston is to provide a further code compliant response to Request for Production, Set One No. 1-38, 40, and 44 without objection except as to attorney-client/work product privilege within 25 days of notice of this order. Plaintiff Nicole Swainston is to simultaneously provide a privilege log specifically identifying any documents withheld and redactions based on attorney client privilege/work product, and containing enough information to clearly denote that the respective withheld document or redaction is subject to attorney client/work product privilege. (CCP § 2031.240(b).)

Plaintiff is to provide responsive documents – compliant with the further responses – and including all documents under Plaintiff’s possession, custody, and control, such as documents in Plaintiff’s Counsel custody such as responsive text messages between Bonilla and Plaintiff, within thirty (30) days of notice of this order.

The Moving Party is ordered to provide notice of this order and file proof of service of such.

[1] Unverified responses “are tantamount to no responses at all.” (Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 636.)

[2] If the occasion arises in the future in this action, the parties must meet and confer regarding each issue that they ultimately wish to raise in any motion to compel further. Failure to comply will result in the Court denying the motion as to any issue that the moving party failed to raise in meet and confer efforts.

County of Los Angeles

Department 26