Judge Joel L. Lofton, Case 22AHCV00242 2022-10-10 Tentative Ruling

Judge: Joel L. Lofton, Case: 22AHCV00242, Date: 2022-10-10 Tentative Ruling

Case Number: 22AHCV00242 Hearing Date: October 10, 2022 Dept: X

Tentative Ruling

Judge Joel L. Lofton, Department X

HEARING DATE: October 3, 2022 TRIAL DATE: No date set.

CASE: BENJAMIN MARTIN, an individual, v. SCOTT WARMUTH, a Professional California Corporation; and DOES 1 through 50, inclusive.

CASE NO.: 22AHCV00242

MOTION TO COMPEL FURTHER

MOVING PARTY: Plaintiff Benjamin Martin

RESPONDING PARTY: Defendant Scott Warmuth

SERVICE: Filed September 7, 2022

OPPOSITION: Filed September 19, 2022

REPLY: Filed September 22, 2022

RELIEF REQUESTED

Plaintiff moves for an order compelling Defendant to produce further responses to his special interrogatories and requests for production of documents.

BACKGROUND

This case arises out of Plaintiff Benjamin Martin’s (“Plaintiff”) claim that his previous employer, Defendant Scott Warmuth (“Defendant”), failed to provide him with his personnel records after terminating his employment. Plaintiff filed this complaint on April 27, 2022, seeking injunctive relief under Labor Code section 1198.5.

TENTATIVE RULING

Plaintiff’s motion to compel further responses is GRANTED.

Defendant is ordered to conduct a further search of its records for documents that relate to Plaintiff’s employment, including for nonsupervisory employees’ communications. Defendant is allowed to redact the names of any nonsupervisory employees pursuant to Labor Code section 1198.5, subdivision (g).

Defendant is ordered to produce a privilege log detailing any communications it asserts are privileged.

Defendant is ordered to produce further responses to special interrogatories numbers 1 through 12.

LEGAL STANDARD

On receipt of a response to discovery requests, the party requesting may move for an order compelling further responses for interrogatories (Code Civ. Proc. 2030.300), requests for admission (Cod. Civ. Proc. section 2033.290), and request for production (Code Civ. Proc. section 2031.310). “Unless notice of this motion is given within 45 days of the service of the verified response, or any supplemental verified response, or any specific later date to which the requesting party and the responding party have agreed in writing, the requesting party waives any right to compel further response to the requests for admission.” (Code Civ. Proc. section 2033.290, subd. (c).)

DISCUSSION

Plaintiff brings the present motion to compel Defendant to provide further responses to his special interrogatories and request for the production of documents. In opposition, Defendant asserts that the discovery exceeds the scope of Plaintiff’s underlying claim to obtain his personal records. Defendant also asserts that Plaintiff’s discovery requests encompass documents that are protected under attorney-client privilege.

“Every current and former employee, or his or her representative, has the right to inspect and receive a copy of the personnel records that the employer maintains relating to the employee’s performance or to any grievance concerning the employee.” (Lab. Code section 1198.5, subd. (a).) “A current or former employee may also bring an action for injunctive relief to obtain compliance with this section, and may recover costs and reasonable attorney’s fees in such an action.” (Lab. Code section 1198.5, subd. (l).)

Requests for Production of Documents

RFP No. 1: A copy of PLAINTIFF’s entire employee personnel file and records, as provided in Labor Code § 1198.5.

The primary issue underlying the parties’ disagreement as to this request for production is what is encompassed within the personnel file and records under Labor Code section 1198.5. Defendant asserts that the entire personnel file has been turned over. Plaintiff, however, argues that Defendant’s discovery responses demonstrate that there were communications involving his termination that have not been disclosed. Neither party fully addresses whether intra-office communications should be considered part of the personnel documents.

However, the parties apparently agree that a supplemental search through intra-office communications is warranted but disagree as to the scope of the search. Defendant asserts that Labor Code section 1198.5, subdivision (g), demonstrates that it should not be required to search the logs of any nonsupervisory employee. Defendant’s position is not supported by the language of the statute. Labor Code section 1198.5, subdivision (g), provides: “Prior to making records specified in subdivision (a) available for inspection or providing a copy of those records, the employer may redact the name of any nonsupervisory employee contained therein.” The language of the statute specifically states that Defendant may redact the names of nonsupervisory employees, which does not support Defendant’s position that nonsupervisory employees’ communications are strictly exempt from Plaintiff’s personnel records.

Defendant also argues that the search would produce documents protected by the attorney-client privilege but making a log would be too expensive.

Code of Civil Procedure section 2031.240, subdivision (c)(1) provides: “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.” “Generally, ‘the privilege-claimant “has the initial burden of proving the preliminary facts to show the privilege applies.” ’ ” (Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.Ap.4^th 566, 596.) Further, the Court in Riddell, Inc. v. Superior Court (2017) 14 Cal.App.5th 755, 772, stated that a party could not object to an order compelling a privilege log by claiming creating a privilege log would be too burdensome.

Defendant has failed to provide the preliminary facts to demonstrate that the privilege applies here. Defendant cannot simply claim that it would be too expensive to produce a privilege log to justify its desire to not search its records. Further, the parties’ disagreement is the scope of a search for documents that are purportedly part of Plaintiff’s personnel file. If a document involves attorney-client privilege but is wholly unrelated to Plaintiff’s personnel records, then Defendant neither has to produce the documents or list the documents in a privilege log.

Special Interrogatories

Special Interrogatory No. 1: State all reason(s) for PLAINTIFF’S termination.

Special Interrogatory No. 2: IDENTIFY all WRITINGS in which any reason for PLAINTIFF’S termination is referenced in any manner.

Special Interrogatory No. 3: IDENTIFY all COMMUNICATIONS in which any reason for PLAINTIFF’S termination is referenced in any manner.

Special Interrogatory No. 4: Describe in detail all factual information that supports the reason(s) for PLAINTIFF’S termination.

Special Interrogatory No. 5: IDENTIFY all WRITINGS in which the factual information that supports the reason(s) for PLAINTIFF’S termination is referenced in any manner.

Special Interrogatory No. 6: IDENTIFY all COMMUNICATIONS in which the factual information that supports the reason(s) for PLAINTIFF’S termination is referenced in any manner.

Special Interrogatory No. 7: Describe in detail, including the date, time and subject matter, each COMMUNICATION that in any way relates to PLAINTIFF’S termination. DEFENDANT may respond to this interrogatory under California Code of Civil Procedure Section 2030.230 by producing the COMMUNICATIONS.

Special Interrogatory No. 8: IDENTIFY all WRITINGS in which each COMMUNICATION that in any way relates to PLAINTIFF’S termination is referenced in any manner.

Special Interrogatory No. 9: IDENTIFY all WRITINGS referencing any CORRECTIVE ACTION or reasons therefore relating to PLAINTIFF, regardless of whether YOU contend that any such WRITING is an employee personnel file document under Labor Code Section 1198.5.

Special Interrogatory No. 10: IDENTIFY all COMMUNICATIONS referencing any CORRECTIVE ACTION or reasons therefore relating to PLAINTIFF, regardless of whether YOU contend that any such WRITING is an employee personnel file document under Labor Code Section 1198.5

Special Interrogatory No. 11: IDENTIFY all WRITINGS used to determine termination or other disciplinary action imposed by DEFENDANT on PLAINTIFF. (Wellpoint Health Networks, Inc. v. Superior Court, 59 Cal. App. 4th 110, 124 (personnel file includes anything “used to determine ... termination or other disciplinary action¨ as section 1198.5 ¨intends a broad definition of ‘personnel file’ to preclude employers from assigning documents to files having some other name, and then refusing access to the documents on the ground that they are not contained in the ‘personnel file.’”)

Special Interrogatory No. 12: IDENTIFY all COMMUNICTIONS referencing the determination of termination or other disciplinary action imposed by DEFENDANT on PLAINTIFF.

Plaintiff asserts the special interrogatories are valid to determine the reason he was fired. Plaintiff contends that Defendant never provided the reason, which is necessary to determine whether his entire personnel file was turned over to him. Defendant objected to the special interrogatories and claims that the information sought is not relevant because Plaintiff’s entire personnel file has been given to him.

“[A]bsent a statutory exemption precluding discovery, the discovery act applies ‘to every civil action and special proceeding of a civil nature.’ ” (City of Los Angeles v. Superior Courty (2017) 9 Cal.App.5th 272, 285.) “ In general, ‘any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.’ ” (Board of Registered Nursing v. Superior Court of Orange County (2021) 59 Cal.App.5th 1011, 1039.)

Here, Defendant’s contention is essentially that discovery is strictly limited to the documents sought under Labor Code section 1198.5. However, Plaintiff disagrees that the entirety of his personnel records have been given to him and is seeking discovery to determine whether that is true. Plaintiff is also seeking to define the scope of the search he is requesting Defendant make. Defendant’s argument that discovery requests are irrelevant is unavailing. Plaintiff’s requests relate to determining the scope of his personnel records and whether the entirety of the records was produced to him.

Defendant is ordered to produce further responses to special interrogatories numbers 1 through 12.

CONCLUSION

Plaintiff’s motion to compel further responses is granted. Defendant is ordered to comply with the instructions detailed below within 15 days of notice.

(1) Defendant is ordered to conduct a further search of its records for documents that relate to Plaintiff’s employment, including for nonsupervisory employees’ communications. Defendant is allowed to redact the names of any nonsupervisory employees pursuant to Labor Code section 1198.5, subdivision (g). Defendant is ordered to produce a privilege log detailing any communications it asserts are privileged.

(2) Defendant is ordered to produce further responses to special interrogatories numbers 1 through 12.

Dated: October 10, 2022 ___________________________________

Joel L. Lofton

Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court indicating their

intention to submit. Parties intending to appear are strongly encouraged to appear remotely. alhdeptx@lacourt.org