Judge: Frank M. Tavelman, Case: 23BBCV01180, Date: 2024-08-09 Tentative Ruling
Case Number: 23BBCV01180 Hearing Date: August 9, 2024 Dept: A
LOS
ANGELES SUPERIOR COURT
NORTH
CENTRAL DISTRICT - BURBANK
DEPARTMENT
A
TENTATIVE
RULING
AUGUST 9, 2024
MOTION
TO COMPEL FURTHER RESPONSES
Los Angeles Superior Court
Case # 23BBCV01180
|
MP: |
Rayven Panton (Plaintiff) |
|
RP: |
Avelo Airlines (Defendant) |
The Court is not
requesting oral argument on this matter. The Court is guided by
California Rules of Court, Rule 3.1308(a)(1) whereby notice of intent to appear
is requested. Unless the Court directs argument in the Tentative Ruling,
no argument is requested and any party seeking argument should notify all other
parties and the court by 4:00 p.m. on the court day before the hearing of the
party’s intention to appear and argue. The tentative ruling will become
the ruling of the court if no argument is received.
Notice may be given
either by email at BurDeptA@LACourt.org or by telephone at (818) 260-8412.
ALLEGATIONS:
Rayven
Panton (Plaintiff) brings this action against Avelo Airlines (Defendant) and
Ryan Macias (Macias). Plaintiff alleges that she was harassed by Macias while
employed by Defendant. Plaintiff further alleges that she was fired as a form
of retaliation after she reported the harassment.
Before
the Court are two motions brought by Plaintiff. Plaintiff first moves to compel
Defendant’s further responses to Special Interrogatories (SPROG) Nos. 1, 2, 4,
5, 6, 7, 8, 9, 11, 12, 13, 14, 15, 16, 17. Plaintiff then moves to compel
Defendant’s further production in response to Request for Production (RFPD)
Nos. 1, 2, 8, and 9. Defendant opposes these motions and Plaintiff replies.
ANALYSIS:
I.
LEGAL
STANDARD
Motion to
Compel Further Responses to Interrogatories
On
receipt of a response to interrogatories, the propounding party may move for an
order compelling a further response if the propounding party deems that the
responses contain: (1) answers that are evasive or incomplete, (2)¿an
unwarranted or insufficiently specific exercise of an option to produce
documents in lieu of a substantive response, or (3) unmerited or overly
generalized objections. (C.C.P.
§¿2030.300(a).) The responding party has the burden of justifying the
objections thereto. (Coy v. Sup.Ct. (1962) 58 Cal.2d 210, 220-21.)
Motion to
Compel Further Responses to Request for Production
A motion
to compel further responses to 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.)
II.
MERITS
Timeline of Discover and
Meet & Confer Efforts
Plaintiff served discovery
on March 14, 2024. (Ritivoiu Decl. ¶ 2.)
Responses were rendered on April 16, 2024. (Id.) Plaintiff sent a
meet and confer letter addressing perceived shortcomings I the responses on May
10, 2024. (Ritivoiu Decl. ¶¶ 5-6.) The deadline to file these motions was May
31, 2024. (Ritivoiu Decl. ¶ 3.)
Plaintiff’s counsel reached
out on May 23, 2024 inquiring about a meet and confer response and requesting
an extension of the deadline to file these motions. (Yun Decl. ¶ 3, Exh. C.)
Defendant’s counsel responded only that they needed a few more days to reply. (Id.)
Defendant’s responded to the meet and confer on May 31, 2024, the deadline to
file the motions. (Yun Decl. ¶ 4.)
Defendant argues that
Plaintiff failed to meet and confer in good faith, while Plaintiff argues the
opposite. The parties are required to meet and confer. (C.C.P. §§2030.300(b),
2031.310(b).) A single letter followed by a response of refusal may be
sufficient in certain circumstances to constitute a proper meet and confer. (Obregon
v. Superior Court (1998) 67 Cal.App.4th 424, 432.) However, the Court will
also consider the time available before the motion deadline, the extent to
which the responding party was complicit in the lapse of time, and the
prospects of success through meet and confer. (Id. at 432-433.)
Here, the Court finds Plaintiff’s
action to meet and confer were in good faith. It appears more to the Court that
Defendant was preoccupied with trial preparation, and this caused an oversight
as to the timing of meet and confer. (Yun
Decl. Exh. B, p. 1.)
Defendant’s Late Opposition
Defendant notes that these
motions were not properly served on Defendant’s counsel, causing their tardy opposition
to the motion to compel further RFPD responses. While it appears that the
motions did not reach Defendant’s counsel in a timely manner, the error in
service does not appear malicious. Plaintiff appears to have attempted to serve
Stephanie Yun at the incorrect email address, likely the result of a
typographical error. (Yun Decl. ¶ 5.) Given the situation the Court will
exercise its discretion to consider the merits of Defendant’s opposition. Given
that Defendant’s counsel did render substantive oppositions to both motions and
Defendant’s counsel was aware of the motions shortly after they were filed, the
Court does not view the service error to be fatal.
Defendant’s Objection
Defendant objects to
Exhibit B attached to the declaration of Cosmin Ritiviou submitted with
Plaintiff’s motion to compel further responses to RFPD. Defendant correctly
states that this Exhibit contains unredacted material which is the subject of
an active Protective Order. Accordingly, Defendant’s objection is SUSTAINED.
The Court orders the declaration and Exhibit B stricken from the record and
refiled under seal. Plaintiff is to
resubmit the document excluding the contents of Exhibit B. The Court admonishes Plaintiff the further
violations of the protective order will be met with financial and/or other
sanctions.
SPROG Set 2, Nos. 1, 11, and 12 – Denied as to No. 1,
Granted as to Nos. 11-12
These requests read as
follows:
·
Identify
each crew member who worked at the workplace during the same hours and dates
Plaintiff worked for you. (SPROG No. 1.)
·
Identify
each person who worked at the gate at the workplace during the same hours and
dates which plaintiff worked for you. The area in an airport terminal where
passengers board or disembark from your aircrafts. (SPROG No. 11.)
·
Identify
each person who worked at the ticket counter at the workplace during the same
hours and dates which plaintiff worked for you. Ticket counter shall mean a
desk or area in an airport where passengers can purchase tickets, check in for
flights, or receive other assistance from you. (SPROG No. 12.)
Defendant objects to each
of these interrogatories on grounds that 1) they are ambiguous, 2) they are
overly burdensome, 3) they seek information which is irrelevant to the instant
action. The Court will address each of these objections in order.
Beginning with the
ambiguity objection, the Court finds the requests are not so ambiguous that a
response cannot be provided. “[W]here the question is somewhat ambiguous, but
the nature of the information sought is apparent, the proper solution is to provide
an appropriate response.” (Deyo v. Kilbourne (1978) 84 Ca.3d 771, 783.)
Here Plaintiff’s interrogatories provide extensive definitions as to the class
of persons they wish to identify. The timeline is also clear, as Plaintiff
requests information of employees who worked concurrently with herself. The
Court does not view any of these requests as being ambiguous.
Nor does the court find the
overburdensome objection to be proper. 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.)
Here, Defendant has provided no evidence of the burden that these requests
would cause. Defendant argues that the scope of every employee who worked
concurrently with Plaintiff is too large a category, but they provide no
evidence to substantiate this claim. Defendant does not state the number of
employees, identify how many are still employed such that their information is
easily obtainable, or any other metric by which the burden on them could be
ascertained. Accordingly, this objection is unwarranted.
As concerns relevance, the
Court finds the information requested is indeed relevant by virtue of being “Me
Too” evidence. “Me Too” evidence is comparative evidence that a plaintiff was
treated differently from others who were similarly situated but are outside the
plaintiff's protected class. (Gupta v. Trustees of California State
University (2019) 40 Cal.App.5th 510, 519.) “[I]ndividuals are similarly
situated when they have similar jobs and display similar conduct.” (Vasquez
v. County of Los Angeles (9th Cir. 2003) 349 F.3d 634, 641.) “The employees
need not be identical but must be similar in material respects.” (Earl v.
Nielsen Media Research, Inc. (9th Cir. 2011) 658 F.3d 1108, 1114.)
“Me Too” evidence is
permitted to prove certain things like motive. (See Beyda v. City of Los
Angeles (1998) 65 Cal.App.4th 511, 521 [me too evidence to prove hostile
work environment]; Johnson v. United Cerebral Palsy/Spastic Children's
Found. of L.A. & Ventura Counties (2009) 173 Cal.App.4th 740, 763-767
[me too evidence about pregnancy discrimination to prove motive where workers
were in the same location and same supervisors]; Pantoja v. Anton (2011)
198 Cal.App.4th 87, 114-118 [me too evidence to prove motive where same
supervisor and same protected class involved]; Hatai v. Department of
Transportation (2013) 214 Cal.App.4th 1287, 1289-1292 [me too evidence of
the same protected class permitted].)
Here, Plaintiff seeks “Me
Too” evidence in the form of the names/identities of Defendant’s employees who
worked concurrently with Plaintiff. As concerns Plaintiff’s SPROG No. 1, the
Court finds this request is not sufficiently limited to similarly situated
members. This request does not seek to identify employees with a similar job to
Plaintiff or employees who had close contact with Macias, instead it simply
requests the identification of all employees, This is not sufficiently
particular to qualify the request as seeking “Me Too” evidence. The same cannot
be said for SPROG No. 11 and 12. These requests specifically request
information of employees who shared the same immediate workplace as Plaintiff.
While Plaintiff could have been more succinct in her requests, the Court is
satisfied that these questions essentially function to request information of
employees who held the same title and duties as Plaintiff.
Accordingly, the motion to
compel further responses is DENIED as to SPROG No. 1 and GRANTED as to SPROG Nos.
11 and 12 with the condition that Defendant may redact the contact information
of current employees.
SPROG Set 2, Nos. 2, 4, 5, 6, 7, 9, 16, and 17 - Denied
Each of these requests
requires Defendant to identify and provide the contact information for current
employees of Defendant. Defendant’s responses identify these employees by name
and state that they can be contacted through counsel as they are currently
represented. Plaintiff’s argument on moving to compel further responses is that
Defendant is obligated to provide the contact information of current employees.
This argument is unpersuasive.
As currently represented
parties, Plaintiff does not have the right to contact current employees
directly. (See Cal. Rules of Prof. Conduct Rule 4.2 [In representing a client,
a lawyer shall not communicate directly or indirectly about the subject of the
representation with a person the lawyer knows to be represented by another
lawyer in the matter, unless the lawyer has the consent of the other
lawyer…this rule prohibits communications with… [a] current employee, member,
agent, or other constituent of the organization, if the subject of the
communication is any act or omission of such person in connection with the
matter which may be binding upon or imputed to the organization for purposes of
civil or criminal liability.]
Further, Defendant’s proposed
solution that their counsel accepts deposition subpoenas on behalf of all
witnesses listed as current employees is reasonable.
Accordingly, the motion to
compel further responses as to SPROG Nos. 2, 4, 6, 7, 9, 16, and 17 is DENIED.
SPROG Set 2, No. 8 - Denied
This requests reads “Please
identify employee Victoria Stennes who worked with Phillip Luna in or about the
period between August 2022 to November 2022.”
Defendant initially refused
to provide the contact information for Stennes, prompting Plaintiff to compel
further response. It appears Defendant supplemented their initial response to
provide the contact information for Stennes. (Yun Decl. Exh. E., p.4.)
Plaintiff does not brief any reason as to why this subsequent response is
insufficient in her Reply brief. As such, it appears the request is moot.
Accordingly, the motion to
compel further responses to SPROG No. 8 is DENIED.
SPROG Set 2, No. 13 -
Denied
This request reads: “Describe
all instances of Ryan Macias harassing employees other than Plaintiff while
working for you.
Defendant initially refused
to respond and stated a litany of objections, prompting Plaintiff to compel
further response. Defendant supplemented its response to “None, to Defendant’s
knowledge”, although this response was still subject to a number of objections.
(Yun Decl. Exh. E., p.5.) Given this response is not specifically addressed in
Plaintiff’s Reply brief, the Court considers the motion mooted by the
subsequent response. Should Plaintiff maintain that this answer is
insufficient, such would be the grounds for a separate motion to compel further
response.
Accordingly, the motion to
compel further responses as to SPROG No. 13 is DENIED.
SPROG Set 2, No. 14 - Denied
This request asks Defendant
to “Describe any investigations of Ryan Macias during his employment with you.”
Defendant replied to this
request by directing Plaintiff to the confidential investigative report Bates-stamped
DEF 0107 – 0115. Plaintiff’s argument on moving to compel further response is
that Defendant’s statement does not indicate whether this is the only
responsive report. The Court disagrees that Defendant’s reply constitutes an
incomplete response to the interrogatory. Plaintiff asked for all investigative
reports on Macias and Defendant responded with the report they have. To the
extent that Plaintiff believes more reports exist, they offer no reasoning for
this belief. Further, it would appear to the Court that this argument is better
suited for a motion to compel further production to RFPD.
Accordingly, the motion to
compel further response to SPROG No. 14 is DENIED.
SPROG Set 2, No. 15 – Granted
The request asks Defendant
to “Describe any investigations of Estella Reyes during her employment with
you.”
Defendant refused to answer
this SPROG and responded with a litany of objections. Plaintiff’s argument on
moving to compel further responses is that this information is relevant to
Plaintiff’s cause of action for failure to prevent harassment. The only
objection briefed in Defendant’s Opposition is the objection on the basis of
relevance to Plaintiff’s cause of action. Defendant argues that Plaintiff has
not alleged that Estella Reyes (Reyes) was her supervisor in the Complaint.
The elements of a cause of
action for failure to prevent harassment or retaliation are: (1) actionable
discrimination or harassment by employees or nonemployees; (2) defendant’s
legal duty of care toward plaintiff (i.e., defendant is the plaintiff’s employer);
(3) breach of that duty (i.e., failure to take all reasonable steps necessary
to prevent discrimination and harassment from occurring); (4) legal causation;
and (5) damages to plaintiff. (Trujillo
v. North County Transit District (1998) 63 Cal.App.4th 280, 287, 289; Bradley v. Department of Corrections &
Rehabilitation (2008) 158 Cal.App.4th 1612, 1630; Gov. Code, § 12940.)
Defendant argues that Reyes
was not Plaintiff’s employer, nor did she serve in a managerial capacity. The
Court finds this argument has no bearing on the relevance of this request to a
cause of action for failure to prevent harassment. Plaintiff’s cause of action
is directed at Defendant, a corporate entity, and not Reyes. Plaintiff is
required to show Defenant failed to take reasonable steps necessary to prevent
the harassment. If Defendant were to have investigated their employee Reyes and
done nothing in response to its findings, such would be evidence of Defendant’s
breach. Reyes’ employment role, whether customer service or manager, has no
bearing on this analysis.
Accordingly, the motion to
compel further responses as to SPROG No. 15 is GRANTED.
RFPD No. 1- Conditionally Granted
This request asks for “Any
and all documents that relate to the investigation referred to on the
Separation Information document produced as Bates DEF 0104.”
Plaintiff moves to compel
further production on grounds that Defendant has asserted the attorney/client
privilege but provided no privilege log. Plaintiff argues that the failure to
produce a privilege log leaves Plaintiff in the dark as to whether any
responsive documents are being withheld. The Court agrees that the failure to
provide a privilege log renders Defendant’s answer incomplete.
C.C.P. § 2031.240(c)
provides:
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)
If an
objection is based on a claim of privilege or a claim that the information
sought is protected work product, the response shall provide sufficient factual
information for other parties to evaluate the merits of that claim, including,
if necessary, a privilege log.
(2)
It is the
intent of the Legislature to codify the concept of a privilege log as that term
is used in California case law. Nothing in this subdivision shall be construed
to constitute a substantive change in case law.
Here, it does not appear
that Defendant’s objections provide anything in the way of explanation as to
their attorney-client privilege objections. Defendant’s argument in their
Opposition brief is that they subsequently produced responsive documents on May
1, 2024. This argument does not address the fact that Defendant maintains its
objection on the basis of privilege in those responses and yet has failed to
state whether they are withholding any documents on basis of that privilege.
Accordingly, the motion to
compel further production as to RFPD No. 1 is GRANTED to the extent that
Defendant is ordered to produce a privilege log for any withheld documents.
RFPD No. 2 - Denied
This request asks for “Any
and all documents that relate to any investigations conducted in connection
with any complaints, reports, charges, grievances or claims by any of your past
or current employees that Ryan Macias had engaged in discriminatory, harassing,
and/or retaliatory conduct.”
Defendant states that on
July 12, 2024 they served supplemental documents in response to the RFPD. (Yun
Decl. ¶ 8, Exh. E.) Plaintiff does not address these supplemental
responses in their Reply brief, except to briefly state that Defendant did not claim
whether this was all of the production. Plaintiff bears the burden to
demonstrate good cause for further production and they have not done so in
light of Defendant’s supplemental response. To the extent that Plaintiff has
good cause to believe further responsive documents exist which have not been
produced, she does not make any showing to that effect.
Accordingly, the motion to
compel further production as to RFPD No. 2 is DENIED.
RFPD No. 8 & 9 - Denied
These requests are as
follows:
Although Plaintiff does not
explain what Bates DEF 0101 is, it appears to be an email list of employees of
Defendant who worked with Plaintiff. Plaintiff argues that she is entitled to
an unredacted list of the employees names and e-mail addresses.
As concerns RPFD No. 8, the
Court finds Plaintiff has not demonstrated good cause for further production.
Plaintiff argues that this information is necessary to “conduct a statistical
analysis of similarly situated employees”. The Plaintiff has not provided sufficient
information for the Court to view a list of every employee concurrent with
Plaintiff to be necessary to such an analysis. If Plaintiff wishes to obtain
the names of similarly situated employees, it is beholden on them to tailor
their request to similarly situated employees. Logic dictates that a
substantial number of these employees still work for Defendant, thus barring
Plaintiff from contacting them directly as previously explained. To the extent
that a similarly situated employee is no longer with the company, Plaintiff’s
request is not reasonably particularized to obtain such information.
As concerns RFPD No. 9,
this too lacks a good cause showing. Although this request is more particular
to crew members, it still requests a completely unmodified and unredacted
version of Defendant’s employee list. Logic dictates this list will contain contact
information for current employees, which Plaintiff is not entitled to.
Accordingly, the motion to
compel further response to RFPD Nos. 8 & 9 is DENIED.
Sanctions
The Court shall impose a
monetary sanction against any party, person, or attorney who unsuccessfully
makes or opposes a motion to compel a further response, 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. (C.C.P. §
2031.310(h).)
Here, the Court does not
find that either party acted in bringing or opposing this motion without
substantial justification. As such, the Court declines to award sanctions in
favor of either party.
---
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
Rayven Panton’s
Motion to Compel Further Responses came on regularly
for hearing on August 9, 2024, 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
AS TO SPROG SET TWO, NOS. 1, 2, 4, 5, 6, 7, 8, 9, 13, 14, 16 AND 17.
THE MOTION TO COMPEL FURTHER RESPONSES IS
GRANTED AS TO SPROG SET TWO, NOS. 11, 12, AND 15.
DEFENDANT MAY REDACT THE CONTACT INFORMATION OF
ANY CURRENT EMPLOYEES IN RESPONSING TO RFPD NOS. 11 AND 12.
THE MOTION TO COMPEL FURTHER PRODUCTION IS
DENIED AS TO RFPD NOS. 2, 8, AND 9.
THE MOTION TO COMPEL FURTHER PRODUCTION IS
GRANTED AS TO RFPD NO. 1 AND DEFENDANT IS ORDERED TO PRODUCE A PRIVILEGE LOG NO
LATER THAN SEPTEMBER 9, 2024.
IT IS SO
ORDERED.
DATE:
August 9, 2024 _______________________________
F.M.
TAVELMAN, Judge
Superior Court of California
County of
Los Angeles