Judge: John C. Gastelum, Case: 22-01250254, Date: 2023-09-14 Tentative Ruling
(1) Motion to Compel Responses to Special Irogs (2) Motion to Compel Production (3) CMC
Tentative Ruling: Plaintiff John Acevedo (“Plaintiff”) moves for an order compelling Defendant Pacific Symphony (“Defendant”) to serve further responses to Plaintiff’s Special Interrogatories, Set Two, Nos. 3-6. Additionally, Plaintiff moves for an order compelling Defendant to serve further responses to Plaintiff’s Request for Production, Set Two, Nos. 12-22. Both sides seek sanctions.
(1) Special Interrogatories Nos. 3-6 ask Defendant to state (3) the business necessity of its requirement that Plaintiff receive a Covid-19 vaccine; (4) all reasons Defendants requires its musicians to receive a Covid-19 vaccine; (5) all evidence Defendant has that the currently available Covid-19 vaccines prevent Covid-19 infection; and (6) all evidence Defendant has that the currently available Covid-19 vaccinations prevent transmission of Covid-19.
Defendant objected to each of the above, and also provided substantive responses. Plaintiff contends the responses are insufficient.
As to Interrogatory No. 3, Plaintiff contends that the response is insufficient because the response does not address the elements of “business necessity” as defined in California Code of Regulations section 11010(b). However, the call of the question does not refer to that statute or otherwise specify that its elements are to be addressed. The response otherwise appears sufficient.
Plaintiff contends that Defendant’s response to Interrogatory No. 4 is insufficient because it does not answer the call of the question. The court disagrees.
As to Interrogatory Nos. 5 and 6, Defendant objected on the grounds that the interrogatories call for expert opinion and testimony prior to the time required by the Code of Civil Procedure. Defendant also provided substantive responses to these interrogatories, indicating various resources that were consulted.
The court agrees that Interrogatories Nos. 5 and 6 call for premature expert opinion and testimony.
Accordingly, Plaintiff’s motion to compel further responses to Special Interrogatories is DENIED.
(2) As an initial matter, Defendant served supplemental responses to all of the requests at issue after the motion was filed. However, Plaintiff takes issue with the wording of the responses to Requests Nos. 12-20.
Code of Civil Procedure section 2031.220 provides:
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.
In its supplemental responses to Nos. 12-20, Defendant indicates for each that “Defendant will produce all responsive documents in its custody, possession, or control. Defendant specifically identifies [Bates Nos.]”
Plaintiff contends this is not a code compliant response because the response does not state whether the production will be allowed in whole or in part. Defendant argues it is obvious from the response that the production will be allowed in whole.
While the court is sympathetic to Defendant’s position, the responses technically do not comply with section 2031.220. The court therefore ORDERS Defendant to provide further code compliant responses to Request Nos. 12-20 within 20 days.
The remaining Requests in dispute are Nos. 21 and 22. These requests seek communications between any of Defendant’s employees and Edmund Velasco, President of the Orange County Musicians Union that (1) refer to Plaintiff and (2) refer to any sort of vaccine mandate for Pacific Symphony musicians.
In its most recent supplemental responses, Defendant responded to each of these Requests with objections and the statement that “Consistent with and without waiving the foregoing, Defendant will produce all responsive documents in its custody, possession, or control from the following individuals: Sean Sutton, Eileen Jeanette, Craig Hahn, and John Forestye. Defendant specifically identifies [Bates Nos.].”
Code of Civil Procedure section 2031.310(b)(1) requires the moving papers to set forth specific facts showing good cause justifying the discovery sought by the inspection demand. To establish “good cause,” the burden is on the moving party to show both: (1) relevance to the subject matter (e.g., how the information in the document would tend to prove or disprove some issue in the case); and (2) specific facts justifying discovery (e.g., why such information is necessary for trial preparation or to prevent surprise at trial). (Glenfed Develop. Corp. v. Superior Court (National Union Fire Ins. Co. of Pittsburgh, Pa.) (1997) 53 Cal.App.4th 1113, 1117.) If the moving party demonstrates good cause, then the opposing party must justify any objections. (Kirkland v Superior Court (2002) 95 Cal.App.4th 92, 98.)
Here, Plaintiff has established good cause. As articulated in Plaintiff’s Reply, “Request No. 21 seeks communications between Defendant’s employees and Union President regarding Plaintiff after Defendant implemented its vaccine mandate. And Request No. 22 seeks communications between Defendant’s employees and Union President regarding Defendant’s vaccine mandate. This case is exclusively about the applicability of Defendant’s vaccine mandate to Plaintiff.” (Reply at 2:20-24.)
Defendant contends the requests implicate the privacy interests of third parties. Defendant cites Cook Paint & Varnish Co. v. Paintmakers & Allied Trades Local 754, 258 N.L.R.B. 1230 (1981) for the proposition that employees have a right to confidentiality when confiding in their union representatives. Defendant also contends that, because Defendant does not provide email addresses to its musicians, the emails would be from its employees’ personal email addresses and therefore its employees would have every reason to believe that the emails were confidential.
In Cook Paint & Varnish Co., the National Labor Relations Board held the substance of conversations between an employee and his steward, as well as the notes kept by the steward, in the course of fulfilling his representational functions, where the employees was potentially subject to discipline, “constitutes protected activity in one of its purest forms.” (Cook Paint at 1232.) The NLRB cautioned, however, that its ruling “does not mean that all discussions between employees and stewards are confidential and protected by the [National Labor Relations] Act.”
Here, it appears there may be some communications made by employees as part of a grievance procedure (as was the case in Cook Paint) and others that were not. Defendant is ORDERED to provide further responses to Request Nos. 21 and 22 within 20 days. To the extent Defendant contends any responsive documents are privileged communications made in connection with a grievance procedure, Defendant shall provide a privilege log identifying those documents.
Both parties’ requests for sanctions in connection with the two motions are DENIED.
Plaintiff to give notice.