Judge: Frank M. Tavelman, Case: 21BBCV00555, Date: 2023-03-10 Tentative Ruling

Case Number: 21BBCV00555    Hearing Date: March 10, 2023    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

MOTION TO COMPEL FURTHER PRODUCTION OF DOCUMENTS

ALLEGATIONS: 

Olivia Campos-Bergeron (“Plaintiff”) filed suit against CBS Broadcasting, Inc. (“CBS”) alleging that she was wrongfully terminated in 2021 as CBS’ Director of Community Relations . Plaintiff alleges misconduct by Plaintiff’s direct manager, Steve Mauldin (“Mauldin”). Plaintiff asserts that both Mauldin and his administrative assistant Tony Gile (“Gile”) exhibited inappropriate behavior towards Plaintiff while a CBS employee. Plaintiff alleges that reports of this conduct were made to CBS’s HR manager, Maggie Serrano (“Serrano”).  

On February 25, 2022, the Court sustained a demurrer with leave to amend with respect to Plaintiff’s Second Amended Complaint (“SAC”). Plaintiff’s SAC contained causes of action for Gender and/or Disability Based Harassment (Gov. Code, § 12940(j)) and Failure to Prevent Harassment (Gov. Code § 12940(k)). On March 8, 2022, Plaintiff filed her Third Amended Complaint (“TAC”). Plaintiff’s claims for harassment and discrimination were absent from the TAC.

At the time the instant motion was filed, a Motion for Leave to File a Fourth Amended Complaint was pending. The TAC contained causes of action for: (1) Retaliation (Gov. Code § 12940(h)), (2) Failure to Prevent Retaliation (Gov. Code, § 12940(k)), (3) Disability Discrimination (Gov. Code, § 12940(a)), and (4) Wrongful Termination Based on Public Policy.

On March 3, 2023, the Court granted Plaintiff’s Motion for Leave to File a Fourth Amended Complaint. (See March 3, 2023 Minute Order.) The Fourth Amended Complaint (4AC) contains causes of action for: (1) Sex/Gender Discrimination and Harassment (Govt. Code §12940(F) and §12940(J); (2) Retaliation (Govt. Code §12940(H); (3) Failure to Prevent Discrimination & Retaliation (Govt. Code §12940(K); (4) Failure to Engage in Good Faith in Interactive Process (Govt. Code §12940(N); (5) Disability Discrimination (Govt. Code §12940(A); and (6) Wrongful Termination Based on Public Policy.

HISTORY: 

On December 8, 2021, Plaintiff propounded her first set of Requests for Documents. On April 15, 2022, CBS served its objections and responses. The parties have met and conferred several times over a period of nine months.

On February 10, 2023 Plaintiff filed her Motion to Compel Further Production of Documents. On February 27, 2023 CBS filed its Opposition. On March 3, 2023 Plaintiff filed her Reply.

RELIEF REQUESTED:

Plaintiff requests an order compelling further responses to her first set of Requests for Documents. Specifically, Plaintiff requests further production with respect to Requests Nos. 12, 13, 33, 35, 45, and 47.  

Plaintiff also requests that sanctions be granted against CBS pursuant to CCP § 2031.310(b) in the amount of $9,060.

ANALYSIS: 

I.                    LEGAL STANDARD 

A motion to compel further responses to a demand for inspection or production of documents (“RFPD”) may be brought based on: (1) incomplete statements of compliance; (2) inadequate, evasive, or incomplete claims of inability to comply; or (3) unmerited or overly generalized objections.  (C.C.P. § 2031.310(c).) 

A motion to compel further production must set forth specific facts showing good cause justifying the discovery sought by the inspection demand. (See C.C.P. § 2031.310(b)(1).) In Digital Music News LLC v Superior Court (2014) 226 Cal.App.4th 216 at 224, the Court defined “good cause” as a showing that there “a disputed fact that is of consequence in the action and the discovery sought will tend in reason to prove or disprove that fact or lead to other evidence that will tend to prove or disprove the fact.”  

If the moving party has shown good cause for the requests for production, the burden is on the objecting party to justify the objections. (Kirkland v. Sup.Ct (2002) 95 Cal. App.4th 92, 98.) 

"The court shall limit the scope of discovery if it determines that the burden, expense, or intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence." (C.C.P. § 2017.020(a).) Generally, objections on the ground of burden require the objecting party to produce evidence of (a) the propounding party's subjective intent to create burden or (b) the amount of time and effort it would take to respond. (See West Pico Furniture Co. of Los Angeles v. Superior Court in and For Los Angeles County (1961) 56 Cal.2d 407, 417.) However, no such evidence is necessary where discovery is obviously overbroad on its face. (See Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 431.)  

II.                 MERITS

Requests Nos. 12 & 13 - Denied

Plaintiff’s Request No. 12 reads as follows:

“All DOCUMENTS RELATING to COMMUNICATIONS between PLAINTIFF and MAULDIN from September of 2010 through February of 2021 (including. but not limited to COMMUNICATIONS in any way pertaining to MAULDIN, KOORS, HILL, DRAPER and/or Tony Gile).”

Plaintiff’s Request No. 13 reads as follows:

“All DOCUMENTS RELATING to COMMUNICATIONS between PLAINTIFF and SERRANO from September of 2010 through February of 2021 (including, but not limited to COMMUNICATIONS in any way pertaining to MAULDIN, KOORS, HILL, DRAPER and/or Tony Gile).”

Plaintiff’s Arguments

Plaintiff argues that further production is required with respect to these requests as she feels the objections rendered by CBS are unreasonable. CBS has objected to production with respect to these requests primarily on the grounds that the requests are overbroad in nature, pertaining to over 100,000 communications. CBS argues that the entirety of this mass of documents cannot possibly be relevant to Plaintiff’s case.

Plaintiff argues that the topic variety of their complaint is so large that rendering requests on a narrower basis is impractical. Plaintiff argues that the 4AC contains allegations that, following her return to work from the 2015 leave of absence, Plaintiff had time off denied, her accrual rate changed, excessive work assignments with denial of support staff, that she was shunned by others and excluded from critical meetings, she was removed from projects and her office was inexplicably moved. (Plaintiff’s Separate Statement, pg. 7.) Plaintiff argues that such wide-ranging conduct cannot reasonably be subject to a request for particularity in production.

Plaintiff argues that the burden of production on CBS is low, as it has already prepared a privilege log and can easily electronically transfer the documents requested. Plaintiff proposes that she would then search the provided documents to determine which is relevant to her case.

Plaintiff further argues that she has narrowed the search parameters through the meet and confer process. Plaintiff now only requests communications to only those between January 2015 and November 2017 in the case of Mauldin. Plaintiff has similarly narrowed the request to communications between January 2015 and February 2021 with respect to Serrano. Plaintiff argues that the Mauldin and Gile communications CBS provided are few in number and do not cover the issues of “ostracism, micro-management, excessive work assignments, exclusion from critical meetings, etc.”

CBS’s Arguments

CBS argues that Plaintiff has not engaged in the meet and confer process in good faith. CBS argues that Plaintiff ensured them she would narrow the scope of the requests by February 3, 2023, confirmed in writing on July 12, 2022. (Truong Decl., Exh. F.) CBS argues Plaintiff later retracted this agreement on February 6, 2023, and stated she was entitled to full production. CBS argues that Plaintiff has leveraged a false promise to narrow the search terms in order to extend her motion to compel deadline.

CBS argues that as per Obregon, Plaintiff failed to meet and confer in good faith. CBS argues this failure should result in the denial of Plaintiff’s motion as to Requests No. 12 and 13.

CBSasserts that Plaintiff’s request should be denied as overbroad on its face. Plaintiff’s belief she is entitled to full production and will thereafter select which documents are relevant to her case is an impermissible attempt at fishing. (Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216 as modified (Mar. 7, 1997).) CBS also argues that Plaintiff’s request is manifestly burdensome as per CCP § 2019.030(a)(1)-(2), and even with the revised time periods the number of communications sought totals over 100,000 documents. CBS argues that it has only reviewed communications relevant to the complaint with respect to privilege and that the process of analyzing all the documents would be unduly burdensome.

Analysis

The Court finds that Plaintiff to engaged in good faith meet and confer.

“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 supra, Cal.App.4th 424, at 67.)

Defendant’s argument for failure to meet and confer in good faith relies primarily on Obregon supra 67 Cal.App.4th 424. In Obregon plaintiff filed a request for motion without any attempt at a meet and confer. Here, Plaintiff met and conferred though letters several times, though the parties disagree as to the sufficiency of those efforts. Plaintiff states that her counsel sent meet and confer letters on June 10, 2022, July 15, 2022, and August 1, 2022. (Guziak Decl. ¶¶ 4-6.) Plaintiff states that these letters contained, among other things, requests for a meeting for discussions on the topic of ESI protocols and search terms under CRC Rule 3.724(8). (Id. at 6.) Plaintiff argues that they never received a response to this request. (Id.)

CBS argues in return that Plaintiff refused to narrow the scope of her requests despite agreeing to do so several times. (Truong Decl. ¶¶ 13, 15-17.) CBS further argues that Plaintiff leveraged these promises to secure extensions for her deadline to file the motion to compel further responses. (Id. ¶¶ 17-20.)

The Court does not find the effort from plaintiff to be inadequate as per Obregon. While it is clear some dispute arose between the parties throughout the meet and confer process, this was not likely the result from a lack of effort on Plaintiff’s part. Plaintiff may have failed to fulfill her promise to narrow the categories is concerning, but CBS failed to responds to Plaintiff’s CRC Rule 3.724(8) requests. The Court does not find that the information presented by the parties supports a finding of denial of the motion on grounds of failure to meet and confer. The Court believes both CBS and Plaintiff met an conferred in good faith.

Nevertheless, the Court does find that the discovery requests made by Plaintiff are overbroad as per Obregon. CBS asserts that Plaintiff’s requests would cover some 100,000 documents. (Truong Decl. ¶ 24.) The burden rests upon the party seeking the discovery to provide evidence from which the court may determine whether the request is reasonably calculated to lead to the discovery of admissible evidence. (Calcor supra 53 Cal.App.4th 216, 223.) “In law and motion practice, factual evidence is supplied to the court by way of declarations.” (Id.)

CBS argues that without further narrowing for relevance, Plaintiff  fails to show that the scope of their request is likely to lead to discoverable information. Plaintiff argues in their separate statement that their claims are so wide ranging that further narrowing would be impossible. (Plaintiff’s Separate Statement, pg.7.) Further, Plaintiff argues that such a wide breadth of emails will lead to discovery of less than flattering attitudes Mauldin, Serrano and others held about plaintiff. (Id.) These statements averring to the necessity of breadth are not presented as evidence in Plaintiff’s declaration.

Regardless, the Court does not find that such arguments are sufficient to necessitate the breath of Plaintiff’s request. Plaintiff specifically acknowledged in their separate statement that she is willing to comb through the documents after the fact to determine relevancy. This statement implies that, as currently stated, Plaintiff’s requests would result in substantial irrelevant information being produced. Further, Plaintiff points to no law which supports that CBS’s burden of production is lessened by virtue of electronic transfer. Plaintiff contends that CBS has already produced a privilege log, and thus has likely already reviewed all these documents for privilege purposes. CBS has directly rebutted this contention, stating that is has only prepared this log to include documents which CBS believes subject to discovery.

Plaintiff argues in her Reply that pursuant to the grant of the Motion for Leave to File Fourth Amended Complaint, the requests in Nos. 12 and 13 are all relevant. Plaintiff argues that because the 4AC adds a claim under Govt. Code §2940(k), her requests are now relevant to the operative complaint. Plaintiff cites to Calcor supra, Cal.App.4th 216, to contend that “fishing expedition” requests are permissible but subject to recognized limits.

The Court does not find that Plaintiff has adequately evidenced the need for such a large scope of document requests. The Court finds that while some of the communications encompassed by Nos. 12 and 13 would certainly lead to discoverable information as per the 4AC’s new claims, the responses remain too broad to compel further responses. The addition of claims in the 4AC does not remedy the burden of production that Plaintiff’s requests place on CBS. Nor does the addition of new claims remedy that Plaintiff still requests documents which will admittedly be irrelevant for purposes of their suit. A great deal of the requested documents may bear relevance to Plaintiff’s claims, but without further narrowing the scope remains too broad.

The Court DENIES the motion to compel further production as to Requests Nos. 12 and 13.

Requests No. 33, 35, 45, and 47 - Denied

Plaintiff’s Request No. 33 reads as follows:

All DOCUMENTS RELATING to any complaint(s) made against MAULDIN for harassment or any other inappropriate conduct, by any other CBS employee other than PLAINTIFF during MAULDIN’s employment/with CBS.

Plaintiff’s Request No. 35 reads as follows:

All DOCUMENTS RELATING to any disciplinary or corrective action taken against MAULDIN as a result of any complaint(s) made against him for harassment or any other inappropriate conduct by any other CBS employee other than PLAINTIFF.

Plaintiff’s Request No. 45 reads as follows:

All DOCUMENTS RELATING to any complaint(s) made against Tony Gile for harassment or any other inappropriate conduct, by any other CBS employee other than PLAINTIFF during Tony Gile’s employment with CBS.

Plaintiff’s Request No. 47 reads as follows:

All DOCUMENTS RELATING to any disciplinary or corrective action taken against Tony Gile as a result of any complaint(s) made against her for harassment or any other inappropriate conduct by any other CBS employee other than PLAINTIFF.

Plaintiff’s Arguments                                                                                

Plaintiff argues that the information sought in these requests is relevant to her case by virtue of the re-inclusion of harassment claims in her proposed fourth amended complaint (“4AC”). Plaintiff argues that these requests will lead to discoverable information as to her proposed harassment claims. In addition, Plaintiff claims that she is entitled to the information sought as relevant “me-too” evidence. Plaintiff argues that she is entitled to pursue a pattern of misconduct from Mauldin and Gile even if the conduct toward others did not occur in plaintiff’s presence or even during Plaintiff’s employment. (Pantoja v. Anton (2011) 198 Cal.App.4th 87.)

CBS’ Arguments

CBS argues that the information sought is irrelevant because the current operative complaint, the TAC, contains no cause of action for harassment. CBS argues the scope of these requests is too broad as they request information related to “inappropriate conduct” which is not guaranteed to have any relevance to the harassment Plaintiff intends to allege. CBS suggests that Plaintiff’s requests would be more appropriately placed if they specified the type of misconduct or type of discrimination alleged. CBS further argues that the information requested is not relevant because it concerns persons who played no role in the alleged adverse employment action.

Analysis

Plaintiff argues in their Reply that because the 4AC contains harassment claims, the information sought by these requests is relevant as “me-too” evidence. Plaintiff explains that this “me-too” evidence is essential to her ability to prove at trial the discriminatory motivation behind CBS’s actions. Plaintiff cites to Johnson v. United Cerebral Palsy/Spastic Children’s Foundation of L.A. and Ventura County (2009) 173 Cal.App.4th 740 and Pantoja v. Anton (2011) 198 Cal.App.4th 87 in support of the argument that “me too” evidence responsive to these requests is discoverable.

Johnson does not support Plaintiff’s argument. Johnson did not deal with whether evidence of other employees’ complaints were discoverable. Instead, Johnson concluded that “me too” evidence in the form of declarations from other employees about their allegedly discriminatory termination from the defendant employer were admissible and substantial evidence sufficient to defeat defendant’s summary judgment motion. (Johnson, supra, 173 Cal.App.4th at 759-768.)

Pantoja speaks more closely to Plaintiff’s request. Pantoja concerned the admissibility of act of discrimination and harassment which did not occur in the plaintiff’s presence. The Court in Pantoja allowed the evidence of these incidents as admissible under Evidence Code § 1101(b), as evidence of racial animus in the motivation for harassment.

Here Plaintiff seeks all complaints or disciplinary actions taken against Mauldin and Gile. Plaintiff claims that these documents are relevant for purposes of establishing that sex/gender were a motivation for the actions of Mauldin and Gile. CBS argues that the inclusion of the phrase “any other inappropriate conduct” means that matters will be included which are irrelevant to Plaintiff’s case.

The Court finds that CBS argument that the requests are irrelevant because Mauldin and Gile were not involved in the alleged wrongful termination to be moot as per the granting of leave to file the 4AC. The 4AC’s allegations of sex/gender discrimination however do raise the relevance of “me -too evidence”.

The Court agrees that the “any other inappropriate conduct” language renders the requests overbroad for the purpose of the harassment and sex/gender discrimination claims. The Court finds however, that the removal of this language would put the request within the scope of discoverable “me-too” evidence. The case law upon which Plaintiff relies concern requests pertaining to specific types of behavior complained of. While Plaintiff’s claims of harassment span a large range of behaviors, it does not follow that reports of any inappropriate conduct by Mauldin and Gile are relevant to Plaintiff’s claim of sex/gender discrimination and harassment.

The Court DENIES the motion to compel further responses to requests Nos. 33, 35, 45, and 47.

Sanctions - Denied

The 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. (C.C.P. § 2023.030(a).) As concerns motions to compel, the law only requires sanctions if a party unsuccessfully makes or opposes a motion to compel a response. (C.C.P. §§ 2031.300 and 2031.290.) As such, any monetary sanctions granted are within the discretionary power of the Court as per C.C.P. § 2030.290.

Plaintiff argues that much of the substance of this motion could have been avoided if CBS did not reject their requests for discussions on the topic of ESI protocols and search terms under CRC Rule 3.724(8). (Plaintiff’s Separate Statement, pg. 5, Guziak Decl. ¶ 6.) Plaintiff argues that this refusal necessitated their motion to compel and as such seeks sanctions. (Id. ¶¶ 6, 13-14.) CBS argues in return that Plaintiff refused to narrow the scope of her requests despite agreeing to do so several times. (Truong Decl. ¶¶ 13, 15-17.) CBS further argues that Plaintiff leveraged these promises to secure extensions for her deadline to file the motion to compel further responses. (Id. ¶¶ 17-20.) CBS requests sanctions be brought against Plaintiff and her counsel for bringing an unmeritorious and unnecessary motion, and for her conduct in misrepresenting the narrowing of requests. (Oppo. at pg. 14.)  

The Court declines to grant sanctions as to either party. The Court finds that while a dispute certainly arose around the parties’ meet and confer efforts, no abuse of the discovery process occurred. Plaintiff maintains that the scope of her requests was appropriate. While the Court disagrees with Plaintiff’s argument, it does not follow that Plaintiff had no basis for making her motion. The evidence submitted by both parties indicates to the Court that a judicial determination on these requests was necessary.

The Court DENIES both Plaintiff’s and CBS’s request for sanctions.

III.              CONCLUSION

The Court DENIES the Motion to Compel Further Responses in its entirety.

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records. 

ORDER 

Olivia Campos-Bergeron’s Motion to Compel Further Responses came on regularly for hearing on March 10, 2023, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows: 

THE MOTION TO COMPEL FURTHER RESPONSES IS DENIED. 

THE MOTION FOR SANCTIONS IS DENIED.

UNLESS ALL PARTIES WAIVE NOTICE, PLAINTIFF IS TO GIVE NOTICE.

IT IS SO ORDERED. 

DATE:  March 10, 2023                            _______________________________ 

                                                                        F.M. TAVELMAN, Judge 

Superior Court of California 

County of Los Angeles