Judge: James L. Crandall, Case: 20-1173258, Date: 2022-08-04 Tentative Ruling

1.    Motion to Compel Production

2.    Motion to Compel Further Responses to Special Interrogatories

Plaintiff Gregg Homer’s Motion to Compel Further Responses to Special Interrogatories against Mother’s Market & Kitchen, Inc. is GRANTED.

“It is a central precept to the Civil Discovery Act of 1986 . . . that civil discovery be essentially self-executing” (See Townsend v. Superior Court, (1998) 61 Cal.App.4th 1431, 1434-35).

“Conduct frustrates the goal of a self-executing discovery system when it requires the trial court to become involved in discovery because a dispute leads a party to move for an order compelling [compliance with a discovery mechanism].” (See Clement v. Alegre, (2009) 177 Cal.App.4th 1277, 1291.)

Code Civ. Proc. section 2017.010 provides in relevant part that “[u]nless 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 … if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence …”

The “relevance to the subject matter” and “reasonably calculated to lead to discovery of admissible evidence” standards are applied liberally. Any doubt is generally resolved in favor of permitting discovery, particularly where the precise issues in the case are not yet clearly established. (Colonial Life & Acc. Ins. Co. v. Sup.Ct. (1982) 31 Cal.3d 785, 790.)

Code Civ. Proc. section 2030.210 states: “(a) The party to whom interrogatories have been propounded shall respond in writing under oath separately to each interrogatory by any of the following: ¶ (1) An answer containing the information sought to be discovered. ¶ (2) An exercise of the party's option to produce writings. ¶ (3) An objection to the particular interrogatory.”

Code of Civil Procedure section 2030.300, states, in part, “(a) 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 any of the following apply: [¶] (1) An answer to a particular interrogatory is evasive or incomplete . . . [¶] (3) An objection to an interrogatory is without merit or too general. . . . [¶] (b) A motion under subdivision (a) shall be accompanied by a meet and confer declaration under Section 2016.040. [¶] (c) Unless notice of this motion is given within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the propounding party and the responding party have agreed in writing, the propounding party waives any right to compel a further response to the interrogatories.”

“The right of privacy is an ‘ “inalienable right” ’ secured by article I, section 1 of the California Constitution. [Citation.] The right of privacy protects against the unwarranted, compelled disclosure of private or personal information and ‘extends to one’s confidential financial affairs as well as to the details of one's personal life.’ [Citation.] (SCC Acquisitions, Inc. v. Superior Court (2015) 243 Cal.App.4th 741, 754.) San Diego Trolley, Inc. v. Superior Court (2001) 87 Cal.App.4th 1083, 1097 (disapproved on other grounds in Williams v. Superior Court (2017) 3 Cal.5th 531, 557, fn. 8), provides, “While we have not been directed to any statutory privilege which protects this information from disclosure, it is clear Cooper’s personnel records and employment history are within the scope of the protection provided by the state and federal Constitutions. [Citations.]”

“The constitutional right of privacy is not absolute; it may be abridged to accommodate a compelling public interest. [Citations.] One such interest, evidenced by California's broad discovery statutes, is ‘ “the historically important state interest of facilitating the ascertainment of truth in connection with legal proceedings.” ’ [Citation.] When an individual’s right of privacy in his financial affairs conflicts with the public need for discovery in litigation, the competing interests must be carefully balanced. [Citation.] Even where the balance weighs in favor of disclosure of private information, the scope of the disclosure will be narrowly circumscribed; such an invasion of the right of privacy ‘ “must be drawn with narrow specificity” ’ and is permitted only to the extent necessary for a fair resolution of the lawsuit.” [Citations.] (Moskowitz v. Superior Court (1982) 137 Cal.App.3d 313, 316; disapproved on other grounds in Williams v. Superior Court (2017) 3 Cal.5th 531, 557, fn. 8.)

Williams v. Superior Court (Williams) (2017) 3 Cal.5th 531, 552, explains, “The party asserting a privacy right must establish a legally protected privacy interest, and objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious. [Citations.] The party seeking information may raise in response whatever legitimate and important countervailing interest disclosure serves, while the party seeking protection may identify feasible alternatives that serve the same interest or protective measures that would diminish the loss of privacy. A court must then balance these competing considerations. [Citation.]”

“To the extent prior cases require a party seeking discovery of private information to always establish a compelling interest or compelling need, without regard to the other considerations articulated in Hill v. National Collegiate Athletic Assn., supra, 7 Cal.4th 1, 26 Cal.Rptr.2d 834, 865 P.2d 633, they are disapproved.” (Id., at p. 557.)

“The Discovery Act requires that, prior to the initiation of a motion to compel, the moving party declare that he or she has made a reasonable and good faith attempt to obtain an informal resolution of each issue. This rule is designed to encourage the parties to work out their differences informally so as to avoid the necessity for a formal order. This, in turn, will lessen the burden on the court and reduce the unnecessary expenditure of resources by litigants through promotion of informal, extrajudicial resolution of discovery disputes.” (Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1293.)

Defendant’s response to Special Interrogatories No. 2 is deficient.

First, on 10-28-21, the Court granted the Motion to Compel as to this interrogatory and ordered Defendant to provide a Code-compliant response. In Opposition to that Motion to Compel, Defendant did not substantiate a privacy objection. Defendant cannot now reply on a privacy objection when it failed to raise this in opposition to the motion to compel.

Second, it is evasive because it does not provide witness contact information. The law supports discovery of witness contact information.

When an objection on privacy is raised, courts “place the burden 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 interest the opposing party identifies as [Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1] requires.” (Williams v. Sup. Ct. (2017) 3 Cal. 5th 531, 557.)

Moreover, the California Supreme Court explained: “[t]he flaw in the Court of Appeal’s legal analysis, and in the cases it relied upon, is the de facto starting assumption that such an egregious invasion is involved in every request for discovery of private information. Courts must instead place the burden 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. What suffices to justify an invasion will, as Marshalls recognizes, vary according to the context. Only obvious invasions of interests fundamental to personal autonomy must be supported by a compelling interest. [citation omitted]” (Id.; Emphasis supplied.)

The Court continued: “In Hill, we established a framework for evaluating potential invasions of privacy. The party asserting a privacy right must establish [1] a legally protected privacy interest, [2] an objectively reasonable expectation of privacy in the given circumstances, and [3] a threatened intrusion that is serious. [citation omitted] 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. [citation omitted]” (Id. at 552; Emphasis supplied.)

The court does not need to balance the countervailing interests if the party making the privacy objection cannot meet the initial 3-part threshold set forth in Hill. In Williams, the court held that disclosing employee witness contact information would not be a serious intrusion and, therefore, no balancing was necessary. (Id. at 554.)

The Court of Appeal similarly held that there was no serious invasion of privacy in disclosing employee contact information in Puerto v. Superior Court (2008) 158 Cal.App.4th 1242. The Puerto court noted that the disclosure of the names and addresses of witnesses is a routine and essential part of the discovery process. (Id., at 1249 to 1250.) The Puerto court first noted that: “Wild Oat’s current and former employees unquestionably have a legitimate expectation of privacy in their addresses and telephone numbers. ... (Citation omitted.) In most if not all cases, the contact information was likely given by the employees to Wild Oats as a condition of employment.” (Id., at 1252.)

Next, the Puerto court explained that: “Here, just as in Pioneer, the requested information, while personal, is not particularly sensitive, as it is merely contact information, not medical or financial details, political affiliations, sexual relationships, or personnel information. (Citations omitted.)” (Id. at 1253.)

Finally, applying the balancing test, the Puerto court commented that: “The individuals whose contact information is sought here have been identified as potential witnesses in response to written discovery. These current and former employees are potential percipient witnesses to the occupational duties of petitioners, the primary issue in this litigation, and as such their locations are properly discoverable. (Citation omitted.)” (Id. at 1256.) Further, the Puerto court noted that generally witnesses with knowledge relevant to a civil action are not permitted to decline to participate in civil discovery. (Id., at 1256 to 1257.)

Here, Defendant did not cite any authority or argument that there is a legally cognizable privacy interest protecting employee contact information. Further, Defendant did not argue the second and third prongs of the Hill test, that the employees have an objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious.

Thus, Defendant did not meet its burden of justifying its privacy objections and no further analysis is needed. “Because two of the three threshold Hill requirements are absent here, we need not move on to a balancing of interests.” (Williams, supra, 3 Cal. 5th at 555.)

Accordingly, the Court compels a further response to this interrogatory.

Regarding interrogatory No. 6, Plaintiff argues that the content of the communications is not provided in response to this interrogatory and the Court should compel the same.

Defendant’s only argument is that the Court deemed the prior motion to compel moot as to this interrogatory. However, the Court only did this because there were new substantive responses served, not because it was deeming the response compliant.

Accordingly, the Court compels a further response to this interrogatory.

Sanctions:

Here, Defendant did not act with substantial justification. It did not put forth any valid legal argument as to why it was justified in withholding witness contact information and the Court already compelled a further response to this interrogatories. Also, it failed to provide complete and straightforward responses. Thus, sanctions should be awarded.

Based on the foregoing, the Court GRANTS Plaintiff Gregg Homer’s Motion to Compel Further Responses to Special Interrogatories against Mother’s Market & Kitchen, Inc.

The Court awards sanctions to Plaintiff in the amount of $1,634.06.

Further responses to be served within fourteen (14) days of this order.

Plaintiff to give notice.

Plaintiff Gregg Homer’s Motion to Compel Further Responses to Requests for Production against Mother’s Market & Kitchen, Inc. is DENIED.

“A statement that the party to whom a demand for inspection, copying, testing, or sampling has been directed will comply with the particular demand shall state that the production, inspection, copying, testing, or sampling, and related activity demanded, will be allowed either in whole or in part, and that all documents or things in the demanded category that are in the possession, custody, or control of that party and to which no objection is being made will be included in the production.” (Code Civ. Proc. § 2031.220)

“A representation of inability to comply with the particular demand for inspection, copying, testing, or sampling shall affirm that a diligent search and a reasonable inquiry has been made in an effort to comply with that demand. This statement shall 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. The statement shall set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item.” (Code Civ. Proc. § 2031.230.)

Code Civ. Proc. § 2031.310 provides: “(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: ¶ (1) A statement of compliance with the demand is incomplete. ¶ (2) A representation of inability to comply is inadequate, incomplete, or evasive. ¶ (3) An objection in the response is without merit or too general.”

In response to Requests for Production Nos. 5 and 6, Defendant provided statements of compliance. The responses state that responding party has complied by stating the documents it produced and stating there are no more responsive documents.

Based on the foregoing, the responses are sufficient.

It appears that Plaintiff wants the Court to compel the remainder of the footage or an explanation as to what happened to it. However, this is not a Motion to Compel Compliance under Code Civ. Proc. § 2031.320, which states: “(a) If a party filing a response to a demand for inspection, copying, testing, or sampling under Sections 2031.210 , 2031.220 , 2031.230, 2031.240 , and 2031.280 thereafter fails to permit the inspection, copying, testing, or sampling in accordance with that party's statement of compliance, the demanding party may move for an order compelling compliance.”

Further, because Defendant provided a statement of compliance and not one stating an inability to comply, it does not need to state the reason for noncompliance under Code Civ. Proc. § 2031.230. There are alternative ways to obtain information regarding the surveillance tape and it appears that Plaintiff has already pursued these discovery methods.

Based on the foregoing, the Court DENIES Plaintiff Gregg Homer’s Motion to Compel Further Responses to Requests for Production against Mother’s Market & Kitchen, Inc.

Plaintiff to give notice.

Future hearing events

10/6/22 - MSJ

3/3/23 – MSC

4/3/23 – Jury Trial