Judge: John J. Kralik, Case: 22BBCV00765, Date: 2023-12-15 Tentative Ruling

Case Number: 22BBCV00765    Hearing Date: April 5, 2024    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

BACKGROUND

A.   Allegations

Plaintiffs Krista Pansini, Jane Creager, Vick Astamendi Edwards, Michelle Funston, Andrea Graber, Theresa Heldt-Valverde, Tracy Henry, Tricia Henry, Michael Kimmel, and Marlene Wieden (“Plaintiffs”) allege that they were employees of Defendant Burbank Unified School District (“Defendant” or “BUSD”) at all times relevant for this action. Plaintiffs allege that they filed charges with the California Department of Fair Employment and Housing (“DFEH”) and were issued right-to-sue letters. 

The FAC alleges that the BUSD, through its board, adopted a resolution mandating that its employees be vaccinated with respect to COVID-19. (FAC ¶¶23-24.) According to the FAC, this requirement was based on misleading and exaggerated claims, and not based on scientific data. (Id., ¶¶25-33.)  The policy stated that “a limited number of individuals” “may” be exempt if they provide a statement “declining vaccination based on Religious Beliefs ….”  (Id., ¶¶31, 34.)  Additional policies were enacted providing for specific accommodations that were not offered to Plaintiffs.  (Id., ¶¶31-37.)

Plaintiffs allege that they requested an exception for BUSD’s COVID-19 vaccination policy as a reasonably accommodation to their sincerely held religious beliefs and/or medical conditions. Plaintiffs allege that the work requirement of being vaccinated conflicted with their religious beliefs that “their bodies are temples of the Holy Spirit and that to inject medical products that have any connection whatsoever to aborted fetal cell lines would be defiling the temple of the Holy Spirit.”  (FAC, ¶44.) 

Plaintiffs allege that they each received a similar denial stating that BUSD was not disputing the sincerity of their religious beliefs at that time, but BUSD was unable to identify a reasonable accommodation that would permit Plaintiffs to work on site and satisfy the health and safety protections of vaccinations, except unpaid leave, that would not pose an undue burden on BUSD.  (FAC, ¶21.)  The letter further stated that if Plaintiffs elected not to get vaccinated, then their only options were to submit a request for unpaid leave of absence or submit their resignation.  (Id.)  Plaintiffs argue that they know for certain that unvaccinated individuals can work safely in school environments with safety protocols in place, and that these protocols were not offered to them.  (Id., ¶33.)  Plaintiffs allege that BUSD failed to provide factual evidence to support its claim of undue burden and failed to follow the law for religious exemption and reasonable accommodation. 

The first amended complaint (“FAC”), filed February 9, 2023, alleges causes of action for: (1) religious discrimination violation of Government Code, § 12940(a) et seq.; (2) religious discrimination – failure to provide reasonable accommodations in violation of Government Code, § 12940(1) et seq.: (3) harassment in violation of Government Code, § 12940 et seq.; and (4) retaliation in violation of Government Code, § 12940(h, l) et seq.

B.    Motions on Calendar

On March 12, 2024, BUSD filed two motions to compel further responses and production of documents against: (1) Tracy Henry; and (2) Tricia Henry, regarding Request for Production (“RPD”), set 4.

The Court is not in receipt of an opposition brief. 

DISCUSSION

A.   Tracy Henry

BUSD moves to compel Tracy Henry’s further responses and production of documents to RPD, set 4, Nos. 23-31.

RPD No. 23 seeks any and all tax returns filed by Tracy Henry from January 1, 2016 to January 1, 2021.  Tracy Henry objected based on the attorney-client privilege, attorney work product doctrine, marital privilege, overbroad, compound, burdensome, seeks information already in BUSD’s possession, irrelevant, and as an annoyance to Plaintiff.  Here, the objections based on attorney-client privilege and attorney work product doctrine have not been substantiated nor is it clear how these privileges would even apply to Tracy Henry’s tax returns, which are not attorney-client communications.  The requests are not overbroad or burdensome as they seek information over a defined time period and tax returns are easily obtainable documents.  BUSD argues that the documents are relevant because loss of income is one of the damages claims and the Henrys have already produced tax returns of 2021 and 2022 but have not produced earlier records, which BUSD seeks to determine the extent of loss.  BUSD argues that the marital privilege does not apply simply because the Henrys may have discussed their taxes since the taxes are submitted to a third party (the IRS/government).  The motion is unopposed and Tracy Henry has not justified the objections.  The objections are overruled.  The motion is granted as to RPD No. 23.

RPD No. 24 seeks all documents reflecting income earned through self-employment from 2015 to the present.  RPD Nos. 25-28 seek similar information for: (25) income earned through Chickadee Productions from 2015 to the present; (26) expenses of Chickadee Productions from 2015 to the present; (27) income earned through The Henry School from 2015 to the present; and (28) expenses of The Henry School from 2015 to the present.  Tracy Henry objected similarly to No. 23 and objected that the terms were vague.  Without waiving objections, Tracy Henry stated he would produce non-privileged documents to the extent that they exist, reflecting income through self-employment, Chickadee Productions, and The Henry School since he was placed on unpaid leave by BUSD.  For similar reasons discussed above, the Court overrules the objections based on privilege.  Further, BUSD argues that the documents sought are relevant to ascertain the Henrys’ other source of income to show what they earned over time and what they could have earned after being on unpaid leave, as Plaintiffs are claiming loss of income in this action.  As such, the motion is granted as to RPD Nos. 24-28.

RPD Nos. 29-30 seek copies of any document reflecting any amounts paid and/or contributed to: (29) True Hope Ministry and (30) Grace Community Church.  Tracy Henry objected based on the attorney-client privilege, attorney work product doctrine, clergy-penitent privilege, marital privilege, overbroad, compound, vague, and irrelevant. Without waiving objections, Plaintiff stated he would produce non-privileged documents in his possession, custody, or control.  With respect to the clergy-penitent privilege, Tracy Henry has not substantiated his claim of privilege that his payment/contribution of monies to certain ministries/churches amounts to a “penitential communication.”  (See Evid. Code, §§ 1030 – 1032.)  The other claims of privilege are overruled.  BUSD argues that the documents are relevant to determine the Henrys’ claim for a religious exemption, as they obtained a letter in support of the religious exemption from True Hope Ministry, which BUSD states is known to provide letters to people who have paid money to the organization.  BUSD argues that it seeks to determine if there is a ministerial relationship between the Henrys and Grace Community Church and, thereby, a lack of relationship with True Hope Ministry.  The motion is granted as to RPD Nos. 29 and 30.

RPD No. 31 seeks a copy of all correspondence, memoranda, writing, text messages, or other documents reflecting communications between Tracy Henry and True Hope Ministry and/or Pastor David Hall.  Tracy Henry objected based on the attorney-client privilege, attorney work product doctrine, clergy-penitent privilege, marital privilege, overbroad, compound, vague, and irrelevant. Without waiving objections, Plaintiff stated he would produce non-privileged documents in his possession, custody, or control.  BUSD argues that to claim a religious exemption, the Henrys relied on letters from Pastor David Hall of True Hope Ministry, such that communications between them are needed to determine the circumstances under which the letter was provided.  A “penitential communication” means “a communication made in confidence, in the presence of no third person so far as the penitent is aware, to a member of the clergy who, in the course of the discipline or practice of the clergy member's church, denomination, or organization, is authorized or accustomed to hear those communications and, under the discipline or tenets of his or her church, denomination, or organization, has a duty to keep those communications secret.”  (Evid. Code, § 1032.)  Here, the motion is not opposed and Tracy Henry has not substantiated his claim of privilege to explain whether the communications qualify as penitential communications.  Thus, the Court will grant the motion as to RPD No. 31, but Tracy Henry may produce a privilege log if necessary. 

The motion to compel Tracy Henry’s further responses is granted as to RPD Nos. 23-31. 

B.    Tricia Henry

BUSD moves to compel Tracy Henry’s further responses and production of documents to RPD, set 4, Nos. 23-24. 

RPD No. 23 seeks any and all tax returns filed by Tricia Henry from January 1, 2016 to January 1, 2021.  For the same reasons discussed above, the motion is granted as to RPD No. 23.

RPD No. 24 seeks all documents showing income and expenses for The Henry School and/or Chickadee Productions from January 1, 2016 to January 1, 2021.  For the same reasons discussed above regarding RPD Nos. 24-28 propounded against Tracy Henry, the motion is granted as to RPD No. 24 against Tricia Henry. 

            No sanctions were requested.

CONCLUSION AND ORDER

            Defendant Burbank Unified School District’s motion to compel Plaintiff Tracy Henry’s further responses to RPD Nos. 23 to 31 is granted.  Defendant’s motion to compel Plaintiff Tricia Henry’s further responses to RPD Nos. 23 to 24 is granted.  Plaintiffs are ordered to provide further responses to the discovery within 20 days of notice of this order.