Judge Jill Feeney, Case Number: 22STCV28233, Date: 2023-08-15 Tentative Ruling

This is an action for harassment on the basis of sex and/or gender and failure to prevent discrimination, harassment, or retaliation. Plaintiff, an engineer employed by the City of Monrovia Fire Department (“CMFD”), alleges that during a party attended by CMFD employees in December 2021, his image was used in a game of pin the tail on the donkey. (FAC ¶7.) Plaintiff reported the misconduct and agreed not to go through a formal investigation in exchange for departmental training on sexual harassment. (FAC ¶¶11-17.) The training did not take place and harassment of Plaintiff continued, with coworkers calling him names for complaining about the harassment. (FAC ¶¶18-19.) CMFD firefighters created a hostile work environment for Plaintiff and made promotion futile because the department participated or knew of the harassing conduct against Plaintiff. (FAC ¶20.) At least one city council member learned of the incident and took no action. (FAC ¶21.) Plaintiff filed complaints with the California Department of Fair Employment and Housing and the City of Monrovia. (FAC ¶¶22-23.)

Under Code of Civil Procedure section 2017.020 courts “shall limit the scope of discovery if” the court “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.” A “court may make this determination pursuant to a motion for protective order by a party or other affected person.” (Id.)

California Code of Civil Procedure section 1987.1, subdivision (a) states, “[i]f a subpoena requires the attendance of a witness or the production of books, documents, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b), or upon the court’s own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders.¿ In addition, the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.”¿

“Before, during, or after a deposition, any party, any deponent, or any other affected natural person or organization may promptly move for a protective order. The motion shall be accompanied by a meet and confer declaration under Section 2016.040. (Code Civ. Proc., § 2025.420, subd. (a).) The court, for good cause shown, may make any order “that justice requires” to protect any party from “unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” (Code Civ. Proc., § 2025.420, subd. (b).) If “good cause” is shown, the court can exercise its discretionary power to limit discovery. (See In re Providian Credit Card Cases (2002) 96 Cal.App.4th 292, 298-99.) The granting or denial of relief lies within the sound discretion of the judge. (Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355, 379-81 (overruled on other grounds pertaining to attorney work product privilege).) The concept of good cause requires a showing of specific facts demonstrating undue burden, unwarranted embarrassment, oppression, or unwarranted annoyance, and justifying the relief sought. (See Goodman v. Citizens Life & Casualty Ins. Co. (1967) 253 Cal.App.3d 807, 819.) Unlike other discovery orders, a protective order may be granted simply on the court’s determination that justice so requires. (Greyhound Corp., 56 Cal.2d at pp. 379-81.)

On March 28, 2023, Defendants deposed Plaintiff. Plaintiff testified that at least two years ago, he engaged in horseplay while showering with other coworkers. (Buccola Depo., 156:12-158:8.) The horseplay was consensual and never uninvited. (Id.) Plaintiff and other coworkers threw water on each other in the showers, jumped on each other, slapped each other’s bottoms, and other acts of horseplay. (Id., 148-160.) Plaintiff also recalls walking in on someone in the shower and joking about the person’s genitals. (Id., 158:9-13.)

After this deposition, Plaintiff was placed on administrative leave and investigated for engaging in acts at the workplace that violated City’s policies. (Buccola Decl., ¶2; Haney Decl., ¶3.) Defendants requested a second deposition of Plaintiff scheduled for December 1, 2023 where they intend to continue questioning Plaintiff about the past horseplay. (Buccola Decl., ¶4.)

The after-acquired evidence doctrine applies specifically in situations where an employee has been terminated, and shields employers from liability arising from the termination. (See Camp v. Jeffer, Mangels, Butler & Marmaro (1995) 35 Cal.App.4th 620, 632 [“The after-acquired-evidence doctrine shields an employer from liability or limits available relief where, after a termination, the employer learns for the first time about employee wrongdoing that would have led to the discharge in any event”].

Here, Plaintiff has not been terminated from his employment with the CMFD. Therefore, the after-acquired evidence doctrine does not apply. Although Defendants cited cases that also discuss the after-acquired evidence doctrine in meet and confer correspondence, Defendants did not raise this issue. Rather, Defendants argued that the evidence of past horseplay was relevant to whether Plaintiff found his workplace objectively and subjectively offensive. (Motion, Exh. 3.)

The doctrine of unclean hands “closes the doors of a court of equity to one tainted with inequitableness or bad faith relative to the matter in which he seeks relief, however improper may have been the behavior of the defendant.” (Camp v. Jeffer, Mangels, Butler & Marmaro (1995) 35 Cal.App.4th 638, 639.) “Not every wrongful act nor even every fraud…prevents a suitor in equity from obtaining relief. The misconduct…must relate directly to the transaction concerning which the complaint is made.” (Id.) “[R]elief is not denied because the plaintiff may have acted improperly in the past or because such prior misconduct may indirectly affect the problem before the court.” (Id.)

Here, Plaintiff is suing for sexual harassment because other employees inappropriately used his image to play pin the tail on the donkey at a party in December 2021. This incident does not appear to be related to the past horseplay Plaintiff participated in years before. The doctrine of unclean hands would not apply here because Plaintiff’s participation in past horseplay is not directly related to the use of his image at the December 2021 party.

To establish a prima facie case of harassment, an employee must show (1) she was an employee; (2) she was subjected to unwanted harassing conduct based on her protected status; (3) the harassing conduct was severe or pervasive; (4) a reasonable person in the employee's circumstances would have considered the work environment to be hostile or abusive; (5) she considered the work environment to be hostile or abusive; (6) that a supervisor engaged in the conduct and/or the employer knew or should have known of the conduct and failed to take immediate and appropriate corrective action; (7) the employee was harmed; and (8) the conduct was a substantial factor in causing the employee's harm. (Thompson v. City of Monrovia (2010) 186 Cal.App.4th 860, 876)

Here, Defendants argue that Plaintiff’s past conduct is relevant to whether Plaintiff found the workplace to be objectively and subjectively offensive. Evidence that Plaintiff previously participated in sexually inappropriate jokes would be relevant to whether Plaintiff would find the December 2021 incident to be offensive, an element of Plaintiff’s claim for harassment. Thus, the information is relevant.

Plaintiff also argues that there is no need to depose Plaintiff a second time because Plaintiff has already been deposed on this subject. However, as Defendants point out, Plaintiff filed a First Amended Complaint alleging Defendants placed him on administrative leave in retaliation after Plaintiff filed this action. Thus, whether Plaintiff’s past conduct violated City’s policies would be relevant to this new retaliation claim. Given that Plaintiff is alleging the investigation was without merit, it is reasonable that Defendants conduct a second deposition on the past conduct.

Gov. Code, section 3253 provides that when any firefighter is under investigation and subjected to interrogation by his or her commanding officer, or any other member designated by the department that could lead to punitive action, the interrogation shall be conducted (1) at a reasonable hour, at a time when the firefighter is on duty, unless an imminent threat to the safety of the public requires otherwise, and through no more than two interrogators at a time, (2) after the firefighter is informed of the rank, name, and command of the officer or other person in charge of the interrogation, the interrogating officer, and all other persons to be present during the interrogation, (3) after the firefighter is informed of the nature of the investigation, (4) for a reasonable period with reasonable breaks, taking into consideration the gravity and complexity of the issue being investigated, and (5) with a grant of immunity from criminal prosecution, without offensive language, without threat of punitive action, without a promise of reward, and after the firefighter has been informed of the consequences of failing to answer questions. A statement made during interrogation by a firefighter under duress, coercion, or threat of punitive action shall not be admissible in any subsequent judicial proceedings unless an exception applies. (Gov. Code, section 3253(f).)

The parties first dispute whether the investigation against Plaintiff has concluded. Defendants’ counsel testifies that on “information and belief, the interview of Plaintiff…in the internal investigation conducted by the City of Monrovia was completed in September 2023.” (Markova Decl., ¶3.) However, Plaintiff testifies that he has not received a notice of intent to discipline or letter of determination which would normally state the investigation has concluded. (Buccola Decl., ¶3.) Thus, it is not clear from the evidence whether the investigation has concluded.

Even if the investigation has not concluded, Plaintiff does not allege that his interrogation did not conform to the requirements set forth by Gov. Code, section 3253. Although Plaintiff argues that the interrogation was conducted in retaliation for Plaintiff’s lawsuit, Plaintiff does not point to any part of the earlier deposition that did not conform with the requirements of Gov. Code, section 3253 or violated any other provision of the Firefighter’s Bill of Rights. Although Plaintiff alleges on reply that a second deposition will subject Plaintiff to unwarranted oppression and undue burden, this argument is unsupported by evidence. A second deposition is not prohibited by the Firefighter’s Bill of Rights. The Court will not rule on the merits of Plaintiff’s retaliation claim here.