Judge Malcolm Mackey, Case 20STCV42875 2022-11-14 Tentative Ruling

Judge: Malcolm Mackey, Case: 20STCV42875, Date: 2022-11-14 Tentative Ruling

Case Number: 20STCV42875 Hearing Date: November 14, 2022 Dept: 55

INCALZA v. PORSCHE DESIGN STUDIO NORTH AMERICA 20STCV42875

Hearing Date: 11/14/22, Dept. 55

#6: MOTION TO COMPEL DEFENDANT PORSCHE DESIGN OF AMERICA, INC. TO PROVIDE FURTHER RESPONSES TO SPECIAL INTERROGATORIES (C.C.P. §2030.300).

Notice: Okay

Opposition

MP: Plaintiff

RP: Defendant PORSCHE

Summary

On 11/9/20, Plaintiff GIANCARLO INCALZA filed a Complaint.

On 3/22/21, Plaintiff filed a First Amended Complaint, alleging that defendants wrongfully terminated his employment, based on age discrimination, and fraudulently induced Plaintiff to sign a severance agreement, release, and illegal noncompetition agreement prohibiting work for Porsche, which he did not fully understand due to limited fluency in English, because of high-level management’s repeatedly stating that the agreement was drafted to mean that Plaintiff could apply for other jobs at Porsche, and then defendants actually processed such job applications.

The causes of action are:

(1) RESCISSION;

(2) VIOLATION OF BUSINESS AND PROFESSIONS CODE § 16600;

(3) FRAUD/DECEIT;

(4) DISCRIMINATION IN VIOLATION OF FEHA;

(5) FAILURE TO HIRE IN VIOLATION OF FEHA;

(6) HARASSMENT IN VIOLATION OF FEHA;

(7) FAILURE TO PREVENT DISCRIMINATION;

(8) FAILURE TO PRODUCE PERSONNEL FILE IN VIOLATION OF CALIFORNIA LABOR CODE § 1198.5;

(9) INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS;

(10) NEGLIGENT HIRING, RETENTION, AND SUPERVISION;

(11) WRONGFUL TERMINATION IN VIOLATION OF PUBLIC POLICY;

(12) WHISTLE-BLOWER RETALIATION IN VIOLATION OF LABOR CODE § 1102.5.

MP Positions

Moving party requests order compelling defendant Porsche Design of America, Inc. to provide further responses to Plaintiff’s Special Interrogatories, within seven days, on grounds including the following:

· Porsche refused to substantively answer the interrogatories at issue.

· Its privacy-based objections are in part inapplicable and outweighed by the direct relevance of the information sought, Incalza’s inability to obtain it through other means, the narrow scope of the interrogatories, and the availability of a protective order.

· The interrogatories at issue seek the identities of potential me-too witnesses and statistical information about Porsche’s employment practices as it relates to the same decision-makers who terminated Incalza’s employment.

· To obtain disparate treatment evidence and discover Porsche’s firing practices, Incalza also seeks the identities of former employees who were discharged for the same alleged reason(s) as Incalza in the last five years.

· The discovery is not burdensome.

· Meet and confer efforts were unsuccessful.

· The following interrogatories are at issue:

o Interrogatory 45: “Please IDENTIFY all former employees of defendant who were over 40 years of age at the time of their termination and whose employment was terminated in the past five years by the same decisionmaker(s) as the decision-maker(s) in the termination of plaintiff’s employment with defendant.”

o Interrogatory 46: “Please IDENTIFY all former employees of defendant whose employment defendant terminated for the same alleged reason(s) as plaintiff’s employment within the past five years.”

o Interrogatory 62: “Please IDENTIFY the age(s) of each former employee of defendant who in the past five years was fired by any of the same decision maker(s) as who terminated plaintiff’s employment.”

RP Positions

Opposing party advocates denying, for reasons including the following:

· There is no question the information Plaintiff’s interrogatories seek is protected by the right to privacy under the California Constitution and California decisional law.

· Plaintiff fails to demonstrate that the information he seeks is directly relevant to his claims in this action or that there is good cause to order production of the information. The information is overbroad and has no connection to plaintiff’s own claims that he was demoted, terminated and not re-hired based upon his age.

· Plaintiff cannot propound requests and hope that a third-party employee bears some similarity to Plaintiff. Life Technologies (2011) 197 Cal. App.4th 640, 652.

· California law requires employers to protect the privacy rights of their employees.

Tentative Ruling

The motion is granted as to special interrogatory number 62, and denied as to numbers 45 and 46.

Defendant PORSCHE DESIGN OF AMERICA, INC. is to provide further responses without objections within 30 days.

The Court finds that special interrogatory number 62 can be answered with a statistical listing of ages, without identifying any employees, but that numbers 45 and 46 seek identifications of employees with their private personnel information, such as their ages and employment termination.

There is no solution offered as to the requirement to notify all subject current and former employees and applicants, of an opportunity to object, before disclosure of private information.

Further, the offer of a parties’ protective order cannot waive third-parties’ notice and participation, if the protective order allows revealing, and not excluding, private information.

Third parties must be notified (e.g., by letter or e-mail) and given an opportunity to either consent or object, before discovery responses revealing their private information, and parties cannot waive such rights of third parties. Belaire-West Landscape, Inc. v. Sup. Ct. (2007) 149 Cal.App.4th 554, 561-62; Pioneer Electronics (USA), Inc. v. Sup. Ct. (2007) 40 Cal.4th 360, 374-75; DOE 2 v. Sup. Ct. (2005) 132 Cal.App.4^th 1504, 1521. Courts have discretion as to methods of notice to third parties, including as to whether to allow third parties an opportunity to object before disclosure, or to require them affirmatively to consent to the discovery, but an overly restrictive approach may be an abuse of discretion where no serious privacy invasion is implicated. Pioneer Electronics (USA), Inc. v. Sup. Ct. (2007) 40 Cal. 4th 360, 369-75. As to discovery seeking non-parties’ private information, the trial court failed (1) to determine whether a compelling need for each category outweighs the privacy interests, taking into consideration any less intrusive means to obtain the information, (2) to provide notice to the non-parties about opportunities to object by a reasonable means, and (3) to provide for protection of such information ordered disclosed. See Life Technologies Corp. v. Sup. Ct. (2011) 197 Cal.App.4th 640, 655-56, disapproved on other grounds by Williams v. Sup. Ct. (2017) 3 Cal. 5th 531, 557. Once third parties have objected to the disclosure of their private information then the court does a specific evaluation of their privacy concerns against competing interests such as direct relevance to plaintiffs’ claims. Alch v. Sup. Ct. (2008) 165 Cal.App.4th 1412, 1438.

There is a privacy interest as to one's personnel files. BRV, Inc. v. Sup. Ct. (2006) 143 Cal. App. 4th 742, 756; Teamsters Local 856 v. Priceless, LLC (2003) 112 Cal. App. 4th 1500, 1515, disapproved on other grounds by Int’l Fed. of Prof. and Technical Engineers, Local 21, AFL-CIO v. Sup. Ct. (2007) 42 Cal.4th 319, 336. "[T]he balance will favor privacy for confidential information in third party personnel files unless the litigant can show a compelling need for the particular documents and that the information cannot reasonably be obtained through depositions or from nonconfidential sources." Harding Lawson Assocs. v. Sup. Ct. (1992) 10 Cal. App. 4th 7, 10, disapproved on other grounds by Williams v. Sup. Ct. (2017) 3 Cal. 5th 531, 557. “The public interest in preserving confidential, personnel information generally outweighs a private litigant's interest in obtaining that information.” Life Technologies Corp. v. Sup. Ct. (2011) 197 Cal.App.4th 640, 652, disapproved on other grounds by Williams v. Sup. Ct. (2017) 3 Cal. 5th 531, 557.

“[C]ourts have routinely sanctioned use of … ‘me too’ type of evidence” “to show intent or motive, for the purpose of casting doubt on an employer's stated reason for an adverse employment action.” Johnson v. United Cerebral Palsy/Spastic Children's Found. of L. A. and Ventura Counties (2009) 173 Cal.App.4th 740, 760. Pantoja v. Anton (2011) 198 Cal.App.4th 87, 110, 115 (court abused discretion in excluding “met too” proof, because, “evidence was admissible to show intent under Evidence Code section 1101, subdivision (b), to impeach … credibility as a witness, and to rebut factual claims made by defense witnesses.”); Johnson v. United Cerebral Palsy/Spastic Children's Foundation of Los Angeles and Ventura Counties (2009) 173 Cal.App.4th 740, 767 (“ ‘me too’ evidence presented … is … admissible under both relevance and … section 352 standards. The evidence sets out factual scenarios related by former employees of the defendant that are sufficiently similar to the one presented by the plaintiff …, and the probative value of the evidence clearly outweighs any prejudice …. Dissimilarities between the facts … go to the weight …, not … admissibility.”). “Generally, the relevance of evidence of discrimination or harassment by defendants against nonparties is ‘fact based and depends on many factors, including how closely related the evidence is to the plaintiff's circumstances and theory of the case.’ ” McCoy v. Pacific Maritime Assn. (2013) 216 Cal.App.4th 283, 296-97. The “me-too” doctrine does not entitle plaintiffs to present evidence of discrimination against employees outside of their protected class in order to show discrimination or harassment, but instead courts have discretion to exclude the evidence on the ground that its probative value would be outweighed by undue prejudice or the consumption of time. Hatai v. Dept. of Trans. (2013) 214 Cal. App. 4th 1287, 1298, disapproved on other grounds by Williams v. Chino Valley Indep. Fire Dist. (2015) 61 Cal. 4th 97, 115.

“[S]tatistical evidence is proper to establish intentional discrimination if the statistics are introduced with ‘proper foundation and subject to the general rules of evidence.’ …. In some cases, statistical analysis does require an expert.” Everett v. Sup.Ct. (2002) 104 Cal. App. 4th 388, 393. Statistical evidence for proving disparate-impact discrimination must be of a kind and degree sufficient to show that facially neutral employment practices caused significant adverse effects on employees of a protected group, and statistical disparities must be sufficiently substantial such that they infer causation. Jumaane v. City of L.A. (2015) 241 Cal.App.4th 1390, 1404-05. Statistical proof is directly relevant as to claims of discriminatory employment practices that are facially neutral but have a disparate impact on a protected class. Alch v. Sup. Ct. (2008) 165 Cal.App.4th 1412, 1428. To show a claim of disparate impact via statistics, plaintiffs must evidence the impact on a protected class in the total workforce of the employer, and not just job subsets, and the impact must be more than a trifling percentage. Carter v. CB Richard Ellis, Inc. (2004) 122 Cal.App.4th 1313, 1325-26 (plaintiff’s data was incomplete, where no evidence of gender or age all defendant's employees, as opposed to the effect of reorganization on just administrative managers). A statistical sample may be too small or equivocal under the circumstances to infer discrimination. Gibbs v. Consolidated Services (2003) 111 Cal.App. 4th 794, 801.

INCALZA v. PORSCHE DESIGN STUDIO NORTH AMERICA 20STCV42875

Hearing Date: 11/14/22, Dept. 55

#6: MOTION TO COMPEL DEFENDANT PORSCHE DESIGN OF AMERICA, INC. TO PROVIDE FURTHER RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS (C.C.P. §2031.310).

Notice: Okay

Opposition

MP: Plaintiff

RP: Defendant PORSCHE

Summary

On 11/9/20, Plaintiff GIANCARLO INCALZA filed a Complaint.

The causes of action are:

(1) RESCISSION;

(2) VIOLATION OF BUSINESS AND PROFESSIONS CODE § 16600;

(3) FRAUD/DECEIT;

(4) DISCRIMINATION IN VIOLATION OF FEHA;

(5) FAILURE TO HIRE IN VIOLATION OF FEHA;

(6) HARASSMENT IN VIOLATION OF FEHA;

(7) FAILURE TO PREVENT DISCRIMINATION;

(8) FAILURE TO PRODUCE PERSONNEL FILE IN VIOLATION OF CALIFORNIA LABOR CODE § 1198.5;

(9) INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS;

(10) NEGLIGENT HIRING, RETENTION, AND SUPERVISION;

(11) WRONGFUL TERMINATION IN VIOLATION OF PUBLIC POLICY;

(12) WHISTLE-BLOWER RETALIATION IN VIOLATION OF LABOR CODE § 1102.5.

MP Positions

Moving party requests order compelling defendant Porsche Design of America, Inc. to provide further responses to Plaintiff’s Requests for Production of Documents, Set One, within seven days., on grounds including the following:

· Porsche’s objections to these requests based on privacy, are misplaced, because the requests seek directly relevant information, are narrowly tailored, and Incalza has no alternative less-intrusive means through which to obtain this necessary discovery.

· The requests also do not seek any highly sensitive private information, and any privacy concerns can readily be mitigated with a protective order.

· As to documents about statistical employment practices, no private information is sought. Nos. 48-51 seek documents that show the ages – and nothing else – of all persons who in the last five years were employed, terminated, demoted, and not hired.

· As for the requests that seek Plaintiff seeks the identities of similarly situated persons over 40 years old, who were subjected to the same adverse employment actions as Plaintiff Incalza (termination and failure to hire), by the same decision-makers, in the same period (last five years).

· Incalza seeks narrowly tailored statistical information about Porsche’s hiring and firing practices, as well as the job applications received by Porsche for the same positions to which Incalza applied ,but was not hired or even interviewed.

· California law is clear that me-too evidence “may be critical for the jury’s assessment of whether a given employer was more likely than not to have acted from an unlawful motive.” (Pantoja v. Anton (2011) 198 Cal.App.4th 87, 113.)

· Meeting and conferring was unsuccessful.

· The following requests are at issue here:

o No. 41: A document identifying all employees over 40 years of age who were terminated in the last five years by one or more of the same decision-makers as those who discharged plaintiff.

o No. 43: A document identifying all employees over 40 years of age who were not hired in the last five years by one or more of the same decision-makers as those decided to not hire plaintiff in 2019.

o No. 44: A document identifying all persons who applied for the same positions as plaintiff in 2019.

o Nos. 48-51: Documents showing the ages of all persons at Porsche who in the last five years were terminated, demoted, and hired, as well as the ages of all employees in the last five years.

o No. 77: All job applications submitted to Porsche in 2019 for the Sales Manager, Timepieces position (for which plaintiff applied).

o No. 79: All job applications submitted to Porsche in 2019 for the Store Manager position at the Porsche Experience Center in Carson, California (for which plaintiff applied).

RP Positions

Opposing party advocates denying, for reasons including the following:

· There is no question the information Plaintiff’s discovery requests seek are protected by the right to privacy under the California Constitution and California decisional law.

· Plaintiff fails to demonstrate that the information he seeks is directly relevant to his claims, or that there is good cause to order production.

· California law requires employers to protect the privacy rights of their employees.

· Defendant was justified in resisting Plaintiff’s efforts to obtain protected third-party information.

· Plaintiff seeks to compel the disclosure of private, confidential employment information concerning third party current and former employees of Defendant Porsche Design of American, Inc., and individuals who may have submitted job applications. Specifically, Plaintiff seeks documents that disclose detailed identifying information concerning: (1) employees, over the age of 40, who were terminated, demoted, or not hired for other positions, (2) all persons who applied for the same positions as Plaintiff in 2019; and (3) the ages of all current and former employees within the last 5 years. Further, Plaintiff seeks disclosure of information related to all job applications submitted to Porsche in 2019 for the Sales Manager, Timepieces position, for which plaintiff applied, and all job applications submitted to Porsche in 2019 for the Store Manager position at a Porsche Experience Center.

Tentative Ruling

The motion is denied.

The Court finds that the subject discovery requests greatly deviate from applicable law, which any attorney experienced in employment law should know.

For instance, there is no solution offered as to the requirement to notify all subject current and former employees and applicants, of an opportunity to object, before disclosure of private information.

Further, the offer of a parties’ protective order cannot waive third-parties’ notice and participation, if the protective order allows revealing, and not excluding, private information.

In the separate statement, document request numbers clearly seek private personnel information, such as identified employees’ names, addresses, phone numbers, ages, employees’ employment terminations, and employees who applied or were not hired. Employment applications generally involve broad, detailed information about a person applying for employment.

While this “fishing expedition” is somewhat narrowed to a “pond,” instead of an “ocean,” so to speak (e.g., narrowed to employees over 40), Plaintiff cannot show that each requested document is directly relevant “me too,” or other directly relevant, evidence, without the Court knowing the full contents of each personnel record.

Additionally, the Court is not really assured by Plaintiff’s memorandum that requests numbers 48 through 51 would yield ages, and nothing else, because personnel documents generally are accompanied by identifications of employees, and those requests do not clearly state to exclude documents showing more than ages, such as a statistical listing of unidentified employees. If Plaintiff wanted such non-private information, then the requests should have been more narrowly written, instead of broadly requesting“[a]ll documents showing the age….”

Third parties must be notified (e.g., by letter or e-mail) and given an opportunity to either consent or object, before discovery responses revealing their private information, and parties cannot waive such rights of third parties. Belaire-West Landscape, Inc. v. Sup. Ct. (2007) 149 Cal.App.4th 554, 561-62; Pioneer Electronics (USA), Inc. v. Sup. Ct. (2007) 40 Cal.4th 360, 374-75; DOE 2 v. Sup. Ct. (2005) 132 Cal.App.4^th 1504, 1521. Courts have discretion as to methods of notice to third parties, including as to whether to allow third parties an opportunity to object before disclosure, or to require them affirmatively to consent to the discovery, but an overly restrictive approach may be an abuse of discretion where no serious privacy invasion is implicated. Pioneer Electronics (USA), Inc. v. Sup. Ct. (2007) 40 Cal. 4th 360, 369-75. As to discovery seeking non-parties’ private information, the trial court failed (1) to determine whether a compelling need for each category outweighs the privacy interests, taking into consideration any less intrusive means to obtain the information, (2) to provide notice to the non-parties about opportunities to object by a reasonable means, and (3) to provide for protection of such information ordered disclosed. See Life Technologies Corp. v. Sup. Ct. (2011) 197 Cal.App.4th 640, 655-56, disapproved on other grounds by Williams v. Sup. Ct. (2017) 3 Cal. 5th 531, 557. That third parties have objected to the disclosure of their private information does not change the requirement of a specific evaluation of their privacy concerns against competing interests. Alch v. Sup. Ct. (2008) 165 Cal.App.4th 1412, 1438.

Opinions reasoned that third party privacy rights were adequately protected by orders requiring that identities be redacted from the requested documents, if disclosed information could not possibly lead to identifications. See Padron v. Watchtower Bible & Tract Soc'y of New York, Inc. (2017)16 Cal. App. 5th 1246, 1270-71; Doe v. United States Swimming, Inc. (2011) 200 Cal. App. 4th 1424, 1438 (“failed to provide any explanation how such information would readily identify….”). Whenever possible, judges should consider the possibility of a protective order limiting the intrusion or disclosure, for assuaging privacy concerns. Alch v. Sup. Ct (2008) 165 Cal.App.4th 1412, 1432. Parties’ protective orders may not avoid privacy concerns where privacy interests outweigh countervailing interests, and it would not be the most minimum intrusion needed. Planned Parenthood Golden Gate v. Sup. Ct. (2000) 83 Cal. App. 4th 347, 369, disapproved on other grounds by Williams v. Sup. Ct. (2017) 3 Cal. 5th 531, 557.

There is a privacy interest against disclosure of addresses and telephone numbers. Planned Parenthood Golden Gate v. Sup. Ct. (2000) 83 Cal.App.4^th 347, 367, disapproved on other grounds by Williams v. Sup. Ct. (2017) 3 Cal. 5th 531, 557; Morales v. Sup. Ct. (1979) 99 Cal. App. 3d 283, 291; Board of Trustees v. Sup. Ct. (1981) 119 Cal. App. 3d 516, 529, disapproved on other grounds by Williams v. Sup. Ct. (2017) 3 Cal. 5th 531, 557. Addresses and telephone numbers of employees deserve some privacy protection. Belaire-West Landscape, Inc. v. Sup. Ct. (2007) 149 Cal.App.4th 544, 561. Generally, employees’ residential addresses and telephone numbers are subject to a right of privacy and a compelling need must be shown. Life Technologies Corp. v. Sup. Ct. (2011) 197 Cal.App.4th 640, 653-55, disapproved on other grounds by Williams v. Sup. Ct. (2017) 3 Cal. 5th 531, 557. Disclosure of addresses and telephone numbers does not amount to a serious invasion of privacy rights. Belaire-West Landscape, Inc. v. Sup. Ct. (2007) 149 Cal.App.4th 544, 561.

“Mere speculation as to the possibility that some portion of the records might be relevant to some substantive issue does not suffice” for showing direct relevance as to private information sought in discovery. Davis v. Sup. Ct. (1992) 7 Cal. App. 4th 1008, 1017-20 (directing trial court to grant motion to quash as to discovery request that was not narrowly drawn to enable the court to evaluate the appropriate extent of disclosure). Absent showings of direct relevance, compelling need, and unavailability of alternative sources, a trial court only could find that a privacy interest prevails. Ombudsman Services of No. Cal. v. Sup. Ct. (2007) 154 Cal.App.4th 1233, 1251, disapproved on other grounds by Williams v. Sup. Ct. (2017) 3 Cal. 5th 531, 557.