Judge: Malcolm Mackey, Case: 22STCV08645, Date: 2023-08-11 Tentative Ruling


Case Number: 22STCV08645    Hearing Date: August 11, 2023    Dept: 55

CAPPIELLO v. KAISER FOUNDATION HEALTH PLAN, INC.,      22STCV08645

Hearing Date:  8/11/23,  Dept. 55.

#6:   MOTION TO COMPEL FURTHER RESPONSES.

 

Notice:  Okay

Opposition

 

MP:  Defendants

RP:  Plaintiff

 

Summary

 

On 3/10/22, Plaintiff MARIO CAPPIELLO filed a Complaint alleging that, during his employment as Associate Consultant, defendants, as employers, prevented Plaintiff from being hired or promoted to one of hundreds of jobs he applied for at Kaiser, on the basis of his sexual orientation and age, and in retaliation for Plaintiff’s complaints.

The causes of action are:

1.      SEXUAL ORIENTATION DISCRIMINATION (FEHA)

2.      DISCRIMINATION BASED ON AGE

3.      RETALIATION FOR CONDUCT THAT IS PROTECTED BY THE FAIR EMPLOYMENT AND HOUSING ACT IN VIOLATION OF CALIFORNIA GOVERNMENT CODE §§ 12940 ET SEQ.

4.      WHISTLEBLOWER RETALIATION [Lab. Code, § 1102.5]

5.      FAILURE TO TAKE ALL REASONABLE STEPS TO PREVENT DISCRIMINATION IN VIOLATION OF CALIFORNIA GOVERNMENT CODE § 12940(k).

 

 

MP Positions

 

Moving party requests an order compelling Plaintiff to provide further responses to moving Defendant's Special Interrogatories Nos. 23-25 (Set Three), on grounds including the following:

 

·         Plaintiff must provide the information available to him at this time and, if he has no such information, he must so state.

·         Plaintiff’s statement that “all jobs he applied to” are at issue, and specifically all “PM1,” “PM2,” and “PM3,” jobs, is both dubious and insufficient. Many jobs, including the Project Analyst and Associate Consultant positions that Plaintiff himself held, include no mention of “PM1,” “PM2,” or “PM3.” This would force Defendant to undertake an exercise of trying to determine which of those positions Plaintiff considers to be a “PM1,” “PM2,” or “PM3” position. This is neither reasonable nor even possible.

·         Defendant’s records of Plaintiff’s job applications will not necessarily include all of the positions that Plaintiff will claim are at issue.

·         Plaintiff has not submitted a declaration or other evidence to show that it would be burdensome for him to disclose the contentions that underlie his claims.

·         Plaintiff failed to timely respond to the interrogatories and waived all of the objections he now asserts.

 

 

RP Positions

 

Opposing party advocates denying, for reasons including the following:

 

·         Plaintiff’s response that “every job that Plaintiff has applied for during the relevant time period” is at issue, is sufficient, as Defendant is easily able to access the specific list of jobs Plaintiff is referencing.

·         Plaintiff provided more specificity by responding “Senior Consultant in Clinical Consulting, Steve Cedrone, 2018; Each “PM 2” position that Plaintiff applied to while a “PM 1”. Each “PM 3” position that Plaintiff applied to while a “PM 2”.” (Declaration of Ryan Fowler, Exhibit “A”). The “PM” labels are internal Kaiser labels for certain jobs. Defendant can easily access this exact information within in its computer system.

·         Plaintiff cannot access this information, since his termination was in March 2023. Plaintiff did not make copies of the over a hundred job applications he submitted during the relevant time period, because he did not anticipate being terminated and losing access to the information contained within his computer “employee portal.”

·         The burden would be much greater on Plaintiff.

 

 

Tentative Ruling

 

The motion is denied.

As for the first interrogatory (23), the opposition and opposing declaration along with meet-and-confer exhibits, make clear that Plaintiff has generally referenced all employment applications sued about, and that more specifics are not reasonably available, because Plaintiff lacks computer access to applicable employment records accessible by the employer.

An interrogatory response must be as complete and straightforward as reasonably available information permits.  CCP §2030.220.  If a respondent does not have personal knowledge for a full response, the party shall so state and make a reasonable and good faith effort to obtain the information by inquiries. Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal. App. 4th 390, 406; Regency Health Services, Inc. v. Sup. Ct. (1998) 64 Cal.App.4th 1496, 1504.

The last two interrogatories (24 and 25) seek contentions, as to which there is no required answer. 

Contention interrogatories involve the reflection of attorneys in formulating a response in a sophisticated process of legal reasoning, sorting through evidence and organizing it in terms of contentions a party is asserting.  Rifkind v. Sup. Ct. (1994) 22 Cal. App. 4th 1255, 1263. 

Additionally, the discovery ruling cannot be based upon moving party’s assertion in contradiction of the discovery responses, that the Complaint could not be truthfully based upon all the many applications.

A motion to compel further discovery responses cannot be granted based on the reason that verified answers served are really untrue.  Holguin v.  Sup.  Ct.  (1972) 22 Cal.App.3d 812, 820, 821. 

Finally, moving party is correct that late discovery objections amount to waivers, but the instant analysis does not depend upon objections.

Parties failing to serve timely responses to discovery requests waive any objections thereto. Pelton v. Delta Packaging Prods. (2008) 165 Cal.App.4th 1658, 1577 n.13;  Sinaiko Healthcare Consulting, Inc. v. Pac. Healthcare Consultants (2007) 148 Cal. App. 4th 390, 404.