Judge Kerry Bensinger, Case Number: 23STCV20397, Date: 2024-07-26 Tentative Ruling

Counsel may submit on the tentative ruling by emailing Dept. 31 before 8:30 the morning of the hearing. The email address is smcdept31@lacourt.org. Please do not call the court to submit on the tentative. Please do not submit to the tentative ruling on behalf of the opposing party. Please do not e-mail the Court if you plan to appear and argue.

In deciding whether to submit on the tentative ruling or attend the hearing and present oral argument, please keep the following in mind:

The tentative rulings authored by this court reflect that the court has read and considered all pleadings and evidence timely submitted to the court in connection with the motion, opposition, and reply (if any). Because the pleadings were filed, they are part of the public record.

Oral argument is not an opportunity to simply regurgitate that which a party set forth in its pleadings. Nor, is oral argument an opportunity to "make a record" when there is no court reporter present and the statements and arguments of counsel are already part of the record because they were set forth in the pleadings. Finally, simply because a party or attorney disagrees with the court's analysis and ruling or is not satisfied with it does not necessarily warrant oral argument when no new arguments will be articulated.

If you submit on the tentative, you must immediately notify all other parties email that you will not appear at the hearing. If you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the motions. If all parties to the motion submit, this tentative ruling will become the final ruling after the hearing date and it will be memorialized in a minute order. This tentative ruling is not an invitation, nor an opportunity, to file further documents relative to the hearing in question. No such document will be considered by the Court.

**Tentative rulings on Motions for Summary Judgment will only be available for review in the courtroom on the day of the hearing.

MOTION TO COMPEL FURTHER RESPONSES BY DEFENDANT UNITED AIRLINES, INC. TO REQUEST FOR PRODUCTION OF DOCUMENTS (SET ONE)

MOTION TO COMPEL FURTHER RESPONSES BY DEFENDANT RIKKI HEISSER TO REQUEST FOR PRODUCTION OF DOCUMENTS (SET TWO)

On August 24, 2023, Plaintiff Glenn Dessasau filed this employment action against Defendants, United Airlines, Inc. (“UA”), and Rikki Heisser (“Heisser”), alleging claims for discrimination, harassment, and retaliation under the Fair Employment and Housing Act, among others.

On October 16, 2023, Plaintiff served UA with Request for Production of Documents (“RFP”), Set One. After obtaining several extensions, UA served its responses on January 23, 2024. As relevant here, UA served objections to RFP, Set One, Nos. 64 and 65. Plaintiff took issue with the objection-only responses. Subsequent meet and confer efforts did not resolve the issue.

On February 15, 2024, Plaintiff served Heisser with RFP, Set Two. Heisser served objections to RFP, Set Two, Nos. 25-29. Plaintiff took issue with the objections and advised Heisser’s counsel of the same. Meet and confer efforts did not resolve the issue.

On May 16, 2024, the parties participated in an Informal Discovery Conference (IDC) with the court concerning RFP, Set One, Nos. 64 and 65, and RFP, Set Two, Nos. 25, 26, 28, and 29. The issues were not resolved. The parties were directed to meet and confer. Plaintiff was ordered to file a Notice of Outcome following the meet and confer.

On May 28, 2024, Plaintiff filed a Notice of Outcome indicating the issues had not been resolved and that motions to compel were forthcoming.

On May 29, 2024, Plaintiff timely filed a Motion to Compel Further Responses by Defendant United Airlines, Inc. to RFP Set One, and a Motion to Compel Further Responses by Defendant Rikki Heisser to RFP Set Two. Plaintiff seeks sanctions against each defendant and their counsel of record.

Defendants filed oppositions. Each defendant requests sanctions against Plaintiff for allegedly failing to meet and confer in good faith.

Under Code of Civil Procedure section 2031.310, parties may move for a further response to requests for production of documents where an answer to the request is evasive or incomplete or where an objection is without merit or too general.¿ A motion to compel further response to requests for production “shall set forth specific facts showing good cause justifying the discovery sought by the inspection demand.”¿ (Code Civ. Proc., § 2031.310, subd. (b)(1).)¿¿¿¿¿

Notice of the motions must be given within 45 days of service of the verified response, otherwise, the propounding party waives any right to compel a further response. (Code Civ. Proc., § 2031.310, subd. (c).)¿ The motions must also be accompanied by a meet and confer declaration. (Code Civ. Proc., § 2031.310, subd. (b)(2).)

Finally, California Rules of Court, Rule 3.1345 requires that all motions or responses involving further discovery contain a separate statement with the text of each request, the response, and a statement of factual and legal reasons for compelling further responses.¿ (Cal. Rules of Court, rule 3.1345(a)(3).)¿¿¿

Code of Civil Procedure section 2023.030 is a general statute authorizing the Court to impose discovery sanctions for “misuse of the discovery process,” which includes (without limitation) a variety of conduct such as: making, without substantial justification, an unmeritorious objection to discovery; making an evasive response to discovery; and unsuccessfully and without substantial justification making or opposing a motion to compel or limit discovery.¿ (Code Civ. Proc., § 2023.010.)¿¿¿¿

If sanctions are sought, Code of Civil Procedure section 2023.040 requires that the notice specify the identity of the person against whom sanctions are sought and the type of sanction requested, that the motion be supported in the points and authorities, and the facts be set forth in a declaration supporting the amount of any monetary sanction.¿¿¿

If the court finds that a party has unsuccessfully made or opposed a motion to compel responses to interrogatories or inspection demands, the court “shall impose a monetary sanction . . . unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”¿ (Code Civ. Proc., § 2031.310, subd. (h).)¿

Sanctions against counsel:¿ The court in Kwan Software Engineering, Inc. v. Hennings (2020) 58 Cal.App.5th 57, 81 (Hennings) noted that discovery sanctions against an attorney are governed by a different standard than sanctions against a party:¿¿¿¿¿

By the terms of the statute, a trial court under section 2023.030(a) may not impose monetary sanctions against a party’s attorney unless the court finds that the attorney “advised” the party to engage in the conduct resulting in sanctions. (§ 2023.030(a); Ghanooni v. Super Shuttle (1993) 20 Cal.App.4th 256, 261, 24 Cal.Rptr.2d 501.)¿ “Unlike monetary sanctions against a party, which are based on the party's misuse of the discovery process, monetary sanctions against the party's attorney require a finding the ‘attorney advis[ed] that conduct.’ ” (Ibid.) “It is not enough that the attorney's actions were in some way improper.” (Corns v. Miller (1986) 181 Cal.App.3d 195, 200, 226 Cal.Rptr. 247 (Corns).) Because an attorney's advice to a client is “peculiarly within [his or her] knowledge,” the attorney has the burden of showing that he or she did not counsel discovery abuse. (Ibid.) Accordingly, when a party seeking sanctions against an attorney offers sufficient evidence of a misuse of the discovery process, the burden shifts to the attorney to demonstrate that he or she did not recommend that conduct. (Id. at pp. 200–201, 226 Cal.Rptr. 247; Ghanooni, at p. 262, 24 Cal.Rptr.2d 501.)¿

Plaintiff seeks a further response to the following discovery: RFP, Set One, Nos. 64 and 65 (from UA), and RFP, Set Two, Nos. 25, 26, 28, and 29 (from Heisser). The court addresses each discovery set in turn.

RFP, Set One, No. 64: All Electronic Mail YOU sent to ANYONE except YOUR attorneys during the RELEVANT TIME PERIOD regarding PLAINTIFF which refers or relates to PLAINTIFF.

UA’s Response: Defendant objects to this request on the grounds that it is overbroad, vague, and ambiguous, including as to the phrases/terms: “Electronic Mail” and “sent.” Defendant further objects on the grounds that the request is not limited in time or scope. Defendant objects to this request to the extent it seeks information that is neither relevant to the claims at issue nor reasonably calculated to lead to the discovery of admissible evidence. Defendant objects to this request on the grounds that it fails to identify with reasonable particularity each item or category of items/documents sought. Defendant further objects to this request to the extent it seeks confidential documents and documents protected by privilege, protection, or doctrine of similar effect. Defendant further objects to this request to the extent it seeks information protected by third party privacy rights under the Federal and California constitutions and applicable statutes.

Ruling: GRANTED in part. In its opposition, UA pivots and now claims that the discovery request is objectionable based on undue burden and expense. However, UA did not timely assert this objection. The objections based on undue burden and expense are therefore waived. (Leach v. Superior Court (1980) 111 Cal.App.3d 902, 906 [objections to discovery not made within the statutorily permitted time are deemed waived].) Further, even if UA had timely asserted objections based on burden and expense, it is UA’s obligation to also identify the specific source that is not reasonably accessible because of the undue burden or expense; and identify in its response the types or categories of sources of ESI that it asserts are not reasonably accessible. (Code Civ. Proc., § 2031.210(d).) UA did not satisfy any of these requirements.

The court also finds that UA’s remaining objections are boilerplate. The RFP is tailored to seek emails regarding Plaintiff in the relevant time period (January 2022 to present). Attorney communications are expressly excluded. On this background, UA cannot claim that the RFP is overbroad or vague, or that it intrudes upon on any privilege. Further, UA does not explain or show how the privacy rights of third parties are implicated.

The parties also disagree over the process by which UA was to determine the scope of the emails captured in a general search of Plaintiff’s name and employee ID. The court is sensitive that the ESI involved is potentially significant. However, UA did not conduct the agreed-upon initial search using Plaintiff’s name and employee ID. (See Gibbs Decl., Ex. I.) UA merely indicated that the data stored for the relevant witnesses totaled 500 GB. (Id.)

Accordingly, the court orders UA to first conduct a general search using Plaintiff’s name and employee ID. If the search yield is still unmanageable in scope, Plaintiff is then ordered to provide reasonable and focused search terms.

RFP, Set One, No. 65: All Electronic Mail YOU received from ANYONE except YOUR attorneys during the RELEVANT TIME PERIOD regarding PLAINTIFF which refers or relates to PLAINTIFF.

UA’s Response: Defendant objects to this request on the grounds that it is overbroad, vague, and ambiguous, including as to the phrases/terms: “Electronic Mail” and “received.” Defendant further objects on the grounds that the request is not limited in time or scope. Defendant objects to this request to the extent it seeks information that is neither relevant to the claims at issue nor reasonably calculated to lead to the discovery of admissible evidence. Defendant objects to this request on the grounds that it fails to identify with reasonable particularity each item or category of items/documents sought. Defendant further objects to this request to the extent it seeks confidential documents and documents protected by privilege, protection, or doctrine of similar effect. Defendant further objects to this request to the extent it seeks information protected by third party privacy rights under the Federal and California constitutions and applicable statutes.

Ruling: GRANTED in part. For the same reasons stated in connection to RFP, Set One, No. 64, the court overrules UA’s (timely and untimely) objections and orders UA to first conduct a general search using Plaintiff’s name and employee ID. If the search yield is still unmanageable in scope, Plaintiff is then ordered to provide reasonable and focused search terms.

RFP, Set Two, No. 25: All Electronic Mail YOU received from ANYONE except YOUR attorneys regarding PLAINTIFF which refers or relates to PLAINTIFF.

Heisser’s Response: Defendant objects to this request on the grounds that it is overbroad, vague, and ambiguous, including as to the phrases/terms: “Electronic Mail” and “received.” Defendant further objects on the grounds that the request is not limited in time or scope. Defendant objects to this request to the extent it seeks information that is neither relevant to the claims at issue nor reasonably calculated to lead to the discovery of admissible evidence. Defendant objects to this request on the grounds that it fails to identify with reasonable particularity each item or category of items/documents sought. Defendant further objects to this request to the extent that it seeks sensitive and confidential business, financial, or proprietary documents. Defendant further objects to this request to the extent that it seeks information protected by the attorney-client privilege, the attorney work product doctrine and/or other privileges, protections, or doctrines of similar effect. Defendant further objects to this request to the extent it seeks information protected by third party privacy rights under the Federal and California constitutions and applicable statutes. Defendant further objects to the production of electronically stored information responsive to this request because it is from a source that is not reasonably accessible because of undue burden or expense and Defendant will not search the source in the absence of an agreement with the demanding party wherein demanding party agrees to pay all reasonable costs related to the production of such electronically stored information and the parties have agreed on search terms for this electronically stored information.

Ruling: GRANTED in part. The request is limited to the relevant time period of November 2022 to present. Heisser’s remaining objections are overruled.

RFP, Set Two, No. 26: YOUR text messages between YOU and Ashanti Marzett between November 1, 2022 and December 31, 2022.

Heisser’s Response: Defendant objects to this request on the grounds that it is overbroad, vague, and ambiguous. Defendant further objects on the grounds that the request is not limited in time or scope. Defendant objects to this request to the extent it seeks information that is neither relevant to the claims at issue nor reasonably calculated to lead to the discovery of admissible evidence. Defendant objects to this request on the grounds that it fails to identify with reasonable particularity each item or category of items/documents sought. Defendant further objects to this request to the extent that it seeks sensitive and confidential business, financial, or proprietary documents. Defendant further objects to this request to the extent that it seeks information protected by the attorney-client privilege, the attorney work product doctrine and/or other privileges, protections, or doctrines of similar effect. Defendant further objects to this request to the extent it seeks information protected by third party privacy rights under the Federal and California constitutions and applicable statutes. Defendant further objects to the production of electronically stored information responsive to this request because it is from a source that is not reasonably accessible because of undue burden or expense and Defendant will not search the source in the absence of an agreement with the demanding party wherein demanding party agrees to pay all reasonable costs related to the production of such electronically stored information and the parties have agreed on search terms for this electronically stored information.

Ruling: GRANTED in part. Plaintiff establishes the relevancy of the text messages between Heisser and Marzett. Marzett was one of the union representatives to whom Plaintiff complained about Heisser. Marzett and Heisser are also close friends. Plaintiff testified to learn that Marzett repeated to Heisser things that Plaintiff was telling Marzett as his union representative. Accordingly, the court narrows the scope of the request to text messages concerning Plaintiff. Heisser’s remaining objections are overruled.

RFP, Set Two, No. 28: YOUR text messages between YOU and any UNITED employee or union representative RELATING TO, mentioning, or referring to PLAINTIFF between January 1, 2023 and the present.

Heisser’s Response: Defendant objects to this request on the grounds that it is overbroad, vague, and ambiguous, including as to the phrase/term: “UNITED employee or union representative.” Defendant further objects on the grounds that the request is not limited in time or scope. Defendant objects to this request to the extent it seeks information that is neither relevant to the claims at issue nor reasonably calculated to lead to the discovery of admissible evidence. Defendant objects to this request on the grounds that it fails to identify with reasonable particularity each item or category of items/documents sought. Defendant further objects to this request to the extent that it seeks sensitive and confidential business, financial, or proprietary documents. Defendant further objects to this request to the extent that it seeks information protected by the attorney-client privilege, the attorney work product doctrine and/or other privileges, protections, or doctrines of similar effect. Defendant further objects to this request to the extent it seeks information protected by third party privacy rights under the Federal and California constitutions and applicable statutes. Defendant further objects to the production of electronically stored information responsive to this request because it is from a source that is not reasonably accessible because of undue burden or expense and Defendant will not search the source in the absence of an agreement with the demanding party wherein demanding party agrees to pay all reasonable costs related to the production of such electronically stored information and the parties have agreed on search terms for this electronically stored information.

Ruling: GRANTED in part. The court narrows the request to the time period of January 1, 2023 to April 1, 2023. The request is otherwise sufficiently limited in time and scope. Heisser does not demonstrate that her right to privacy is outweighed by the need for the discovery. To the extent the documents implicate privilege, Heisser must provide a privilege log. Heisser’s remaining objections are overruled.

RFP, Set Two, No. 29: YOUR text messages between YOU and ANYONE not employed by UNITED RELATING TO, mentioning, or referring to PLAINTIFF between November 1, 2022 and December 31, 2022.

Heisser’s Response: Defendant objects to this request on the grounds that it is overbroad, vague, and ambiguous, including as to the phrase/term: “ANYONE not employed by UNITED.” Defendant further objects on the grounds that the request is not limited in time or scope. Defendant objects to this request to the extent it seeks information that is neither relevant to the claims at issue nor reasonably calculated to lead to the discovery of admissible evidence. Defendant objects to this request on the grounds that it fails to identify with reasonable particularity each item or category of items/documents sought. Defendant further objects to this request to the extent that it seeks sensitive and confidential business, financial, or proprietary documents. Defendant further objects to this request to the extent that it seeks information protected by the attorney-client privilege, the attorney work product doctrine and/or other privileges, protections, or doctrines of similar effect. Defendant further objects to this request to the extent it seeks information protected by third party privacy rights under the Federal and California constitutions and applicable statutes. Defendant further objects to the production of electronically stored information responsive to this request because it is from a source that is not reasonably accessible because of undue burden or expense and Defendant will not search the source in the absence of an agreement with the demanding party wherein demanding party agrees to pay all reasonable costs related to the production of such electronically stored information and the parties have agreed on search terms for this electronically stored information.

Ruling: GRANTED. Heisser’s objections are overruled. Heisser does not demonstrate that her right to privacy is outweighed by the need for the discovery. The request is sufficiently limited in time and scope. To the extent the documents implicate privilege, Heisser must provide a privilege log. Heisser’s remaining objections are overruled.

The court finds that Defendants had substantial justification in opposing the respective motions to compel. As to UA, Plaintiff seeks documents which will require extensive work to locate any responsive documents from a large and potentially unmanageable source. As to Heisser, Plaintiff seeks documents from her personal cell phone. The concerns, on their face, are well-founded. Accordingly, the court declines to impose any sanctions.

Plaintiff’s Motion to Compel Further Responses by Defendant United Airlines, Inc. to RFP, Set 1, Nos. 64 and 65 is GRANTED in part. UA is to conduct a general search using Plaintiff’s name and employment ID within 15 days of the date of this order. If necessary, UA is to notify Plaintiff of the need for additional search terms within 5 days of the results.

Plaintiff’s Motion to Compel Further Responses by Defendant Rikki Heisser to RFP, Set 2, Nos. 25, 26, 28, and 29 is GRANTED in part. Heisser to produce the documents within 45 days of the date of this order.

Kerry Bensinger

Judge of the Superior Court