Judge: Holly J. Fujie, Case: 21STCV06352, Date: 2024-01-18 Tentative Ruling

DEPARTMENT 56 JUDGE HOLLY J. FUJIE, LAW AND MOTION RULINGS. The court makes every effort to post tentative rulings by 5.00 pm of the court day before the hearing. The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)], and are also available in the courtroom on the day of the hearing [see CRC 3.1308(b)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) call Dept 56 by 8:30 a.m. on the day of the hearing (213/633-0656) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no telephone call is necessary and all parties should appear at the hearing in person or by Court Call. Court reporters are not provided, and parties who want a record of motions and other proceedings must hire a privately retained certified court reporter.

Case Number: 21STCV06352    Hearing Date: January 18, 2024    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

            MOVING PARTY: Plaintiff

            RESPONDING PARTY: Defendant The Board of Trustees of the California State University (“Moving Defendant”)

            The Court has considered the moving, opposition and reply papers. 

BACKGROUND

This action arises out of an employment relationship.  The currently operative second amended complaint (the “SAC”) alleges: (1) discrimination; (2) harassment; (3) retaliation; (4) failure to prevent, investigate and remedy harassment and discrimination; (5) whistleblower retaliation; and (6) reprisal/retaliation.[1]

On December 11, 2023, Plaintiff filed a motion to compel further deposition testimony of Defendant’s Person Most Qualified (“PMQ”) (the “Motion”).  The Motion concerns the sufficiency of the PMQ’s testimony regarding an investigation process into Plaintiff’s complaints as well as the appeal process after the investigation itself was concluded.

DISCUSSION

            Under California Code of Civil Procedure (“CCP”) section 2025.450, if, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party, without having served a valid objection, fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent’s attendance and testimony and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.  (CCP § 2025.450, subd. (a).)  The motion must both: (1) set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice; and (2) include a meet and confer declaration pursuant to CCP section 2016.040, or, when the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.  (CCP § 2025.450, subd. (b)(1)-(2); see Leko v. Cornerstone Building Inspection Service (2001) 86 Cal.App.4th 1109, 1124 (the statute also applies when the deponent simply fails to appear).)

On August 28, 2023, Defendant produced Marc Mootchnik (“Mootchnik”), its Assistant Vice Chancellor and Chief Counsel for Human Resources, as its PMQ for topics 20, 27, and 34-35.  (Declaration of Beth Gunn (“Gunn Decl.”) ¶ 7.)  The Separate Statement filed in conjunction with the Motion details the portions of Mootchnik’s testimony that Plaintiff contends were inadequate.

Adequacy of PMQ’s Preparation

If the deponent named is not a natural person, the deposition notice shall describe with reasonable particularity the matters on which examination is requested. In that event, the deponent shall designate and produce at the deposition those of its officers, directors, managing agents, employees, or agents who are most qualified to testify on its behalf as to those matters to the extent of any information known or reasonably available to the deponent.  (CCP § 2025.230.)  If the subject matter of the questioning is clearly stated, the burden is on the entity, not the examiner, to produce the right witnesses.  (LAOSD Asbestos Cases (2023) 87 Cal.App.5th 939, 948.)

The PMQ deposition notice broadly requests information regarding Defendant’s decisions and instructions regarding its handling of Plaintiff’s complaint and its “response” to Plaintiff’s subsequent appeal.  (See Gunn Decl. ¶ 5.)  The Court finds that Mootchnik appeared reasonably prepared to respond to questioning on the scope of the identified inquiries, and his inability to answer certain specific questions does not evince a lack of preparation given the breadth of the noticed deposition topics.   

Attorney-Client Privilege/Work Product Protection

In the context of employment claims, if a defendant employer hopes to prevail by showing that it investigated an employee's complaint and took action appropriate to the findings of the investigation, then it will have put the adequacy of the investigation directly at issue, and cannot stand on the attorney-client privilege or work product doctrine to preclude a thorough examination of its adequacy.  (Wellpoint Health Networks, Inc. v. Superior Court (1997) 59 Cal.App.4th 110, 128 (“Wellpoint”).)  Where a defendant has produced its files and disclosed the substance of its internal investigation conducted by nonlawyer employees, and only seeks to protect specified discrete communications which those employees had with their attorneys, disclosure of such privileged communications is simply not essential for a thorough examination of the adequacy of the investigation or a fair adjudication of the action.  (Kaiser Foundation Hospitals v. Superior Court (1998) 66 Cal.App.4th 1217, 1227 (“Kaiser”).)

Plaintiff and Defendant disagree about the nature of the work performed by the investigator Defendant employed to investigate Plaintiff’s internal complaints.  Defendant contends that the narrower waiver rule articulated in Kaiser applies because its investigator was not “acting” in the capacity of an attorney when conducting the investigation.  By its own terms, however, Kaiser applies to investigations performed by nonattorneys, and the Kaiser holding does not draw a distinction between attorneys acting as outside investigators.  It is undisputed that Defendant has raised the sufficiency of its investigation (which includes its internal appeal process) as an issue; therefore, under Wellpoint, it has waived attorney-client privilege/work-product protection objections to inquiries on the subject.  The Court therefore GRANTS the Motion insofar as it relates to topics regarding the sufficiency of Mootchnik’s responses that invoked attorney/client privilege or work product protection.

Moving party is ordered to give notice of this ruling.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

    Dated this 18th day of January 2024