Judge: Malcolm Mackey, Case: 22STCV13865, Date: 2023-03-30 Tentative Ruling

Case Number: 22STCV13865    Hearing Date: March 30, 2023    Dept: 55

PHUOC CONG NGUYEN v. SWIFT MEDIA ENTERTAINMENT, INC.,  22STCV13865

Hearing Date:  3/30/23,  Dept. 55.

#6:   MOTION TO COMPEL DEFENDANT BLITZ APP, INC.’S FURTHER RESPONSES TO SPECIAL INTERROGATORIES AND DOCUMENT REQUESTS.

Notice:  Okay

Opposition

MP:  Plaintiff

RP:  Defendant BLITZ APP, INC.

Summary

On 4/27/22, Plaintiff PHUOC CONG NGUYEN filed a Complaint alleging that defendants wrongfully terminated his employment as marketing manager, based on the pretext of employees’ sexual harassment complaints, whereas it was actually because he reported to a Human Resources manager that his supervisor was smoking marijuana during work hours at work.

The causes of action are:

1. RETALIATION IN VIOLATION OF LABOR CODE § 1102.5

2. WRONGFUL TERMINATION IN VIOLATION OF PUBLIC POLICY

3. UNLAWFUL DENIAL OF REASONABLE ACCOMMODATION OF A DISABILITY

4. FAILURE TO ENGAGE IN TIMELY, GOOD FAITH, INTERACTIVE PROCESS

5. RETALIATION IN VIOLATION OF FEHA

6. FAILURE TO PREVENT DISCRIMINATION AND RETALIATION IN VIOLATION OF FEHA

7. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

8. NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS.

MP Positions

Moving party requests an order compelling Defendant BLITZ APP, INC. to provide further responses to special interrogatories and document requests., on grounds including the following:

·         Plaintiff is entitled to the employer’s disclosure of percipient witness information.

·         The 3 alleged victims are witnesses to the employer’s response to their allegations of sexual harassment, which relates to the pretexual nature of the purported reason for terminating Nguyen.

·         Defendant’s purported reason for terminating Nguyen. because of complaints of sexual harassment, is not credible.  Actually, Plaintiff’s employment was terminated by Defendant Blitz App, Inc. seven days after he reported marijuana use by his supervisor at work.

RP Positions

Opposing party advocates denying, for reasons including the following:

·         Defendants properly withheld the identities of the sexual harassment victims.

·         The names, addresses and telephone numbers of victims of sexual harassment are private information, and subject to misuse by a perpetrator accused of sexual harassment.

·         Sexual Harassment Victims have a constitutional right to privacy that is not outweighed by the issues involved in this case to ensure a fair and impartial trial.

·         The employer does not need to be correct in its investigation. Here, Plaintiff has not carried his burden to show how the names and identities would reveal how the investigation was not impartial and/or in good faith.

·         The protection of the identity of sexual harassment victims will encourage victims to come forward and report sexual harassment, as opposed to having a chilling effect.

·         The 3 witnesses do not want their identities disclosed in this case.

Tentative Ruling

The motion is granted.

That the 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.

The disclosures of witnesses’ identities relate to relatively minimal privacy intrusion, whereas Plaintiff claiming wrongful termination has a direct interest in discovery of whether the employer’s reliance on employees’ complaints of sexual harassment was unsupported pretext, beyond just being error or unwise.

“Central to the discovery process is the identification of potential witnesses.”  Puerto v. Sup. Ct. (2008) 158 Cal.App.4th 1242, 1249.  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. 

After a plaintiff meets the initial burden, employers must offer a nonretaliatory reason for the employment action, and then the burden shifts back to the employee to prove intentional retaliation by showing that an employer's justification is pretext; such as by showing “weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions,” beyond a showing that employer decisions were “wrong, mistaken, or unwise.”  McRae v. Dept. of Corrections and Rehab. (2006) 142 Cal.App.4th 377, 388-89.  “[E]vidence that the employer's claimed reason is false—such as that it conflicts with other evidence, or appears to have been contrived after the fact—will tend to suggest that the employer seeks to conceal the real reason for its actions, and this in turn may support an inference that the real reason was unlawful.”  Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal. App. 4th 686, 715.  To show pretext, employees must address whether a discriminatory animus motivated employers, and not whether employers’ decisions were wrong, mistaken, wise, shrewd, prudent, or competent.  Arteaga v. Brink's, Inc. (2008) 163 Cal.App.4th 327, 343.

The parties’ different versions of the merits are not determinative of discovery rulings.  “In pursuing such discovery, the strength or weakness of the plaintiff's individual claim is immaterial….”  Williams v. Sup. Ct. (2017) 3 Cal.5th 531, 551.  “[T]he statutory scheme imposes no obligation on a party propounding interrogatories to establish good cause or prove up the merits of any underlying claims.”  Williams v. Sup. Ct. (2017) 3 Cal.5th 531, 550.  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.

An advisory ruling in a very similar case, in federal District Court, approved deposing employees who had complained of sex harassment, regarding possible bias, but disapproved of further discovery into private personnel files, as summarized in the following treatise excerpt:

Nor could he show that the information he sought could not be obtained through less intrusive means. There were other options available to inquire into the witnesses' credibility or potential bias; he could depose the employees who gave witness statements during the underlying investigation. In fact, he had already deposed at least one of the witnesses, and planned to depose the employee who handled the investigation. Thus, the magistrate denied the plaintiff's request to compel the employer to produce the files.

Evidence, Discovery—S.D. Cal.: Plaintiff Not Entitled To Personnel Files of Employees Who Made Statements During Investigation of Sexual Harassment Complaints Against Him, 2014 WL 12812347.