Judge: Malcolm Mackey, Case: 21STCV07414, Date: 2023-03-24 Tentative Ruling
Case Number: 21STCV07414 Hearing Date: March 24, 2023 Dept: 55
TAHMAZIAN
v. COUNTY OF LOS ANGELES, 21STCV07414
Hearing Date: 3/24/23,
Dept. 55.
#6:
MOTION TO COMPEL DEFENDANT COUNTY OF LOS ANGELES TO
PROVIDE FURTHER RESPONSES TO SPECIAL INTERROGATORIES (SET TWO) AND REQUEST FOR
SANCTIONS AGAINST DEFENDANT, AS WELL AS THEIR ATTORNEYS, JOINTLY AND SEVERALLY,
IN THE AMOUNT OF $5,560.00.
MOTION TO COMPEL DEFENDANT
COUNTY OF LOS ANGELES TO PRODUCE WITNESSES TO SIT FOR DEPOSITION; REQUEST FOR SANCTIONS AGAINST DEFENDANTS AND
DEFENDANTS’ COUNSEL IN THE AMOUNT OF $5,225.00.
Notice: Okay
Opposition
MP:
Plaintiff
RP:
Defendant
Summary
On 2/24/21, Plaintiff EILEEN TAHMAZIAN filed a
Complaint.
On 5/24/21, Plaintiff filed a First Amended Complaint,
alleging that defendants caused adverse employment actions and wrongful
employment termination, based on Plaintiff’s age, race, disability, color,
and/or national origin.
The causes of action are:
(1) DISCRIMINATION (AGE,
RACE, DISABILITY, ORIGIN, ANCESTRY) IN VIOLATION OF THE FEHA;
(2) HOSTILE WORK
ENVIRONMENT HARASSMENT (AGE, RACE, DISABILITY, GENDER, ORIGIN, ANCESTRY) IN
VIOLATION OF THE FEHA;
(3) RETALIATION IN
VIOLATION OF THE FEHA;
(4) FAILURE TO PROVIDE
REASONABLE ACCOMMODATION IN VIOLATION OF FEHA;
(5) FAILURE TO ENGAGE IN
THE INTERACTIVE PROCESS IN VIOLATION OF FEHA;
(6) FAILURE TO PREVENT
DISCRIMINATION, HARASSMENT, AND RETALIATION IN VIOLATION OF FEHA.
MP
Positions
Moving party requests an order (1) compelling
Defendant/s further responses to special interrogatories nos.
125, 126, 127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 140,
141, 142, 143, 144, 145, 146, 147, and 148 and imposing $5,560 in sanctions,
and (2) compelling deposition attendance of 13 witnesses and imposing $5,225 in
sanctions, on grounds including the following:
·
Plaintiff requested information to
determine whether other employees were subjected to discrimination, harassment,
and retaliation, during their employment with Defendants, which is relevant to
the Sixth Cause of Action of Failure to Prevent Discrimination, Harassment, and
Retaliation. (CACI 2527; MF Pacific Pearl Hotel Management LLC (2017) 16
Cal.App.5th 963, 701).
·
Defendant served incomplete, evasive
responses coupled with boilerplate, meritless objections: (1) vague and ambiguous; (2) violation of the
right to privacy of third parties; and (3) violation of the attorney-client
privilege and/or attorney-work product doctrine.
·
Defendant provided nonresponsive, supplemental
responses which qualify each response by unilaterally limiting each request to
“CPOE complain(s) that [were] substantiated” (Gbewonyo Decl., ¶ 11, Exhibit 4).
·
Plaintiff has attempted to obtain
deposition dates that 13 critical witnesses can be deposed, in order for
Plaintiff to oppose Defendants’ pending Motion for Summary Judgment, or in the
alternative Summary Adjudication. Code of Civil Procedure section 2025.450(a).
RP Positions
Opposing party advocates denying, and imposing g
$3,750 in sanctions as to the interrogatories motion, for reasons including the
following:
·
The interrogatories seek information as to
an unlimited number of employees regarding all present and former employees of
Defendant who made any complaints of discrimination or harassment on the basis
of age race, gender, or disability or retaliation against Defendant Hamlet
Panosian and employee Andre Forte, whether or not those complaints were
substantiated.
·
None of the complaints made against
Defendant Panosian and Mr. Forte in the categories requested by Plaintiff’s
Special Interrogatories (i.e., discrimination or harassment (on the basis of
age race, gender, or disability) or retaliation against Defendant Hamlet Panosian
and employee Mr. Forte, were found to be substantiated by the County’s investigations unit, which is a confidential
process under its County Policy of Equity (“CPOE”), as to which the Official
Information Privilege applies.
·
Plaintiff and her counsel should not be
permitted to invade non-parties’ constitutionally protected privacy interests
where there is no connection to Plaintiff and/or the claims and defenses in
this case. (City. of Los Angeles v. Los Angeles City Employee Relations Com., 56
Cal. 4th 905, 927 (2013) [“County employees have a legally protected privacy
interest in their home addresses and telephone numbers. Courts have frequently
recognized that individuals have a substantial interest in the privacy of their
home.”].
·
Plaintiff has been provided with the
identities all individuals who may have any information related to her case.
·
As for depositions, Defendant County’s
witnesses have never refused to appear for anything; rather, dates have not
been selected due to conflicts with trial schedules.
·
Defendant County’s objections were to the
sixteen depositions Plaintiff’s counsel unilaterally set.
·
Plaintiff’s counsel filed the motion
without adequately meeting and conferring to schedule the deposition dates. The
parties were meeting and conferring regarding deposition dates and had recently
agreed to deposition dates.
·
A Motion for Protective Order, to limit
the number of depositions, has been reserved for July 28, 2023.
Tentative
Ruling
The motion to compel further responses to specified
special interrogatories is granted as to compelling and denied as to sanctions.
The motion to compel attendance at depositions is
granted as to compelling and denied as to sanctions.
Special
Interrogatories.
Defendant is to provide further responses within 30
days.
Plaintiff’s requests regarding other employees’
similar complaints are sufficiently relevant where very minimal privacy
intrusion is involved as to names, addresses and telephone numbers of employees.
“[W]hen the court concludes that there is no serious
invasion of privacy no balance of opposing interests is required.” Puerto v. Sup. Ct. (2008) 158
Cal.App.4th 1242, 1256. 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.
Plaintiff need not evidence the merits of the
complaints in order to obtain discovery.
Parties requesting discovery information are not first required to prove
that it would be relevant and admissible.
Alch v. Sup. Ct. (2008) 165 Cal.App.4th 1412, 1429-31. “[T]o show the merits of one's case has never
been a threshold requirement for discovery….”
Williams v. Sup.Ct. (2017) 3 Cal.5th 531, 558.
Potential discovery relevance is indicated by
applicable substantive law. “[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 “me
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.
Proof of a harasser’s
actions towards other employees, while working for the same employer at the
same time, could show a common plan, or employer ability to discover
harassment. Bihun v. AT&T Information Systems, Inc. (1993) 13
Cal.App.4th 976, 990, overruled on other
grounds by Lakin v. Watkins
Associated Ind. (1993) 6 Cal.4th 644, 664.
Evidence
of an alleged harasser’s prior conduct with other employees may be admissible
to show that person’s oppression, malice, intent, or knowledge. Weeks v. Baker & McKenzie (1998)
63 Cal. App. 4th 1128, 1162.
However, the “me-too” doctrine does not necessarily 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.
Further, after employers are informed of harassment,
they must take immediate and appropriate action reasonably calculated to end
the harassment. Bradley v. Department
of Corrections & Rehabilitation (2008) 158 Cal. App. 4th 1612, 1630. See also Thompson v. City Of Monrovia (2010)
186 Cal.App.4th 860, 880 (“An employer
who knows or should have known of unlawful harassment and retaliation, and
fails to take immediate and appropriate corrective
action, may be liable for the resulting damages, pursuant to Government
Code section 12940, subdivision (j)(1).”).
Next, the official information privilege does not
apply, because the interrogatories do not request information from the County’s
investigations unit, and employees’ identification information can be obtained
in other employer records. As to an
“official records,” objection, courts weigh need in the interest of justice,
against the public interest in confidentiality. Ev. C. §1040(b) ("A public entity has a
privilege to refuse to disclose official information...."); Haggerty v. Sup. Ct. (2004) 117 Cal.
App. 4th 1079, 1092. Evidence Code
Section 1040(b)(2) is a conditional privilege as to which the court must
sustain the privilege only if a necessity for preserving the public interest in
confidentiality of the information outweighs the necessity for disclosure in
the interest of justice, or the particular party's interest in obtaining the
information. Los Angeles Unified
School Dist. v. Trustees of the So. Cal. IBEW-NECA Pension Plan (2010) 187
Cal.App.4th 621, 631-32.
Depositions
The parties are directed to continue meeting and
conferring as to the times of the many depositions. If the parties fails to
agree upon times, then the Court may set the deposition times, which may not be
the most convenient times for witnesses and counsel.
No meet and confer is required to compel initial
deposition attendance, but instead there must be a declaration showing that
moving party inquired about the nonappearance.
CCP §2025.450(b)(2).
"Implicit in the requirement that counsel contact the deponent to
inquire about the nonappearance is a requirement that counsel listen to the
reasons offered and make a good faith attempt to resolve the issue
including by rescheduling. Leko v.
Cornerstone Bldg. Inspection Serv. (2001) 86 Cal. App. 4th 1109, 1124. See
also L.A.S.C.L.R. 3.26, Appendix 3.A(e) (reasonable consideration should be
given to accommodating schedules in setting depositions).
Sanctions
The Court imposes no sanctions, it finding substantial
justification for some positions of each side.
Generally, monetary sanctions are mandatory as to parties losing
discovery motions, unless courts find substantial justification or other
injustice. E.g., Foothill Properties v. Lyon/Copley
Corona Assocs., L.P. (1996) 46 Cal.App.4th 1542, 1557-58. “ ‘[S]ubstantial justification” has been
understood to mean that a justification is clearly reasonable because it is
well-grounded in both law and fact.” Doe
v. U.S. Swimming, Inc. (2011) 200 Cal.App.4th 1424, 1434.
*IF BOTH PARTIES SUBMIT ON THE COURT’S TENTATIVE
RULING, PLEASE CALL THE COURTROOM AT 213-633-0655*