Judge: Mark A. Young, Case: 23SMCV01693, Date: 2024-12-13 Tentative Ruling
Case Number: 23SMCV01693 Hearing Date: December 13, 2024 Dept: M
CASE NAME: Webb v. Pepperdine
University
CASE NO.: 23SMCV01693
MOTION: Motion
for Terminating Sanctions
Motion to Compel Further
HEARING DATE: 12/13/2024
Legal
StandardS
Terminating Sanctions
If a party fails to obey a
court order compelling it to provide a discovery response, “the court may make
those orders that are just, including the imposition of an issue sanction, an
evidence sanction, or a terminating sanction . . . In lieu of or in addition to
this sanction, the court may impose a monetary sanction . . ..” (CCP §§
2030.290(c), 2030.300(e), 2031.300(c), 2031.320(c).) Misuse of the discovery
process, which includes disobeying a court order to provide discovery, is
conduct subject to sanctions. (CCP § 2023.010(g).) Possible sanctions are:
(a) [A] monetary sanction
ordering that one engaging in the misuse of the discovery process, or any
attorney advising that conduct, or both pay the reasonable expenses, including
attorney's fees, incurred by anyone as a result of that conduct….
(b) [A]n issue sanction
ordering that designated facts shall be taken as established in the action in
accordance with the claim of the party adversely affected by the misuse of the
discovery process. The court may also impose an issue sanction by an order
prohibiting any party engaging in the misuse of the discovery process from
supporting or opposing designated claims or defenses.
(c) [A]n evidence sanction by
an order prohibiting any party engaging in the misuse of the discovery process
from introducing designated matters in evidence.
(d) [A] terminating sanction by
one of the following orders:
(1) An order
striking out the pleadings or parts of the pleadings of any party engaging in
the misuse of the discovery process.
(2) An order
staying further proceedings by that party until an order for discovery is
obeyed.
(3) An order
dismissing the action, or any part of the action, of that party.
(4) An order
rendering a judgment by default against that party.
(e) [A] contempt sanction by an
order treating the misuse of the discovery process as a contempt of court.
(CCP § 2023.030.)
The party seeking to impose
sanctions need only show the failure to obey earlier discovery orders. (Puritan
Ins. Co. v. Superior Court (1985) 171 Cal.App.3d 877, 884 [interpreting
former statute dealing with “refusal” to comply].) However, numerous cases hold
that severe sanctions (i.e., terminating or evidentiary sanctions) for failure
to comply with a court order are allowed only where the failure was willful. (R.S.
Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 495; Vallbona
v. Springer (1996) 43 Cal.App.4th 1525, 1545; Biles v. Exxon Mobil Corp.
(2004) 124 Cal.App.4th 1315, 1327.) The burden of proof then shifts to the
party seeking to avoid sanctions to establish a satisfactory excuse for his or
her conduct. (Corns v. Miller (1986) 181 Cal.App.3d 195, 201.)
Motion to Compel Further
In the absence of contrary court order, a
civil litigant’s right to discovery is broad. “[A]ny party may obtain discovery
regarding any matter, not privileged, that is relevant to the subject matter
involved in the pending action . . . if the matter either is itself admissible
in evidence or appears reasonably calculated to lead to the discovery of
admissible evidence.” (CCP § 2017.010; see Davies v. Superior Court (1984) 36 Cal.3d 291, 301.) Section
2017.020(a) vests the Court with authority to limit the scope of discovery if
the burden, expense, or intrusiveness of the discovery sought “clearly
outweighs the likelihood that the information sought will lead to the discovery
of admissible evidence.” CCP § 2019.030
directs the Court to consider the needs of the case, amount in controversy, and
the importance of the issues at stake in the litigation, and to consider
whether the discovery being sought is unreasonably cumulative or duplicative,
or is obtainable by a more convenient or less expensive or less burdensome way,
when deciding whether to restrict the frequency of extent of use of an
authorized discovery method.
If a party to whom a demand for
inspection, copying, testing, or sampling is directed fails to serve a timely
response, the propounding party may move for an order compelling response to
the demand. (CCP § 2031.300(b); see Sinaiko
Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007)
148 Cal.App.4th 390, 403-404.) However, when responses are served, the proper
motion is a motion to compel further responses, which is governed by CCP §§
2030.300 and 2031.310. A motion to compel further responses must set forth
specific facts showing “good cause” justifying the discovery sought by the
demand and must be accompanied by a declaration showing a “reasonable and good
faith attempt” to resolve the issues outside of court. (CCP §§ 2016.040,
2031.310(b)(2).)
A motion to compel further responses
to a demand for inspection or production of documents may be brought based on:
(1) incomplete statements of compliance; (2) inadequate, evasive or incomplete
claims of inability to comply; or (3) unmerited or overly generalized
objections. (Code Civ. Proc., § 2031.310(c).) A motion
for order compelling further responses “shall set forth specific facts showing
good cause justifying the discovery sought by the demand.” (CCP §
2031.310(b)(1).) Absent a claim of privilege or attorney work product, the
moving party meets its burden of showing good cause by a fact-specific showing
of relevance. (See Kirkland v.
Superior Court (2002) 95 Cal.App.4th 92, 98.) If the moving party
has shown good cause for the RPDs, the burden is on the objecting party to
justify the objections. (Ibid.)
Analysis
Terminating Sanctions
Plaintiff Breanna C. Webb moves for sanctions
against Defendant
Pepperdine University. Plaintiff requests that Defendant’s answer be stricken
and default be entered.
Plaintiff claims that Defendant has
“fabricated” evidence in violation of Penal Code sections pertaining to
presenting evidence in official proceedings. Penal Code section 132 makes it a
felony for any person “who upon any trial, proceeding, inquiry, or
investigation whatever, authorized or permitted by law, [to] offer[] in
evidence, as genuine or true, any book, paper, document, record, or other
instrument in writing, knowing the same to have been forged or fraudulently
altered or ante-dated” (Emphasis Added.) Penal Code section 134 makes it a
felony for any person that prepares “any false or ante-dated book, paper,
record, instrument in writing, or other matter or thing, with intent to
produce it, or allow it to be produced for any fraudulent or deceitful purpose,
as genuine or true, upon any trial, proceeding, or inquiry whatever,
authorized by law, is guilty of a felony.” (Emphasis added.)
Plaintiff provides the following
timeline. On February 8, 2024, Defendant produced documents responsive to Plaintiff's
Request for Production (RPD) Set One (bates nos. Pepperdine 00001-Pepperdine
00120). Plaintiff notes that Defendant produced, among other things, Plaintiff’s
original onboarding paperwork (Pepperdine 00004-Pepperdine 00010). She notes
that the first day of work was electronically time-stamped (July 5, 2022) at
the top of each page. On September 4, 2024, defendant's counsel sent supplemental
documents (bates nos. Pepperdine 00207- Pepperdine 00229). Plaintiff complains
that this production included a “totally different” onboarding packet with a “number
of alterations” including alterations to the Pepperdine logo, page numbering, additional
paragraphs about confidential documents, and a paragraph promising to return documents
upon termination. Notably, the supplemental onboarding packet is no longer
time-stamped at the top of each page. Plaintiff claims that these alterations to
the onboarding packet must have been made after Plaintiff signed/authorized the
onboarding documents in order to bolster their claim, and to create grounds to
access Plaintiff's email and/or Google Drive data during discovery.
Defendant argues that there is no
discovery abuse. The documents (Pepperdine 00207 00229) were produced in
compliance with their ongoing duty to supplement discovery. (Onyemaobim Decl.,
¶ 3.) Pepperdine disclaims altering any of the at-issue documents. (Orellana Decl.,
¶¶ 5-6.) Rather, it explains that the document formatting differs only to the
extent that Pepperdine included the application portion of the form and that it
had “updated its onboarding form” between July 5, 2022, and September 4, 2024.
(Onyemaobim Decl., ¶¶ 2-3, 5, Exhs. A-B, D; Orellana Decl., ¶ 5.) Defendant
notes that each of Plaintiff’s custom responses in her onboarding materials
remains consistent in both documents.
First, the Court observes that even
if Defendant committed sanctionable conduct, the Court would not resort to
terminating sanctions. The discovery statutes evince an incremental approach to
discovery sanctions, starting with monetary sanctions and ending with terminating
sanctions. “Discovery sanctions should be appropriate to the dereliction,
and should not exceed that which is required to protect the interests of the
party entitled to but denied discovery.” (Laguna Auto Body v. Farmers Ins.
Exchange (1991) 231 Cal.App.3d 481, 491.) The trial court should
consider both the conduct being sanctioned and its effect on the party seeking
discovery and, in choosing a sanction, should “attempt[] to tailor the sanction
to the harm caused by the withheld discovery.” (Do It Urself Moving &
Storage, Inc. v. Brown, Leifer, Slatkin & Berns (1992) 7 Cal.App.4th
27, 36.) Continuing misuses of the discovery process warrant
incrementally harsher sanctions until the sanction is reached that will curb
the abuse. (Doppes v. Bentley Motors, Inc. (2009) 174 Cal. App. 4th
967, 992.) Thus, terminating sanctions should be used sparingly and less severe
alternatives should be used unless the record clearly shows lesser sanctions
would be ineffective to induce compliance. (See R.S. Creative, Inc. v.
Creative Cotton, Ltd. (1999) 75 Cal. App. 4th 486, 496 [terminating
sanctions proper where plaintiffs violated two discovery orders].) Here, lesser
sanctions remain available. This includes monetary sanctions and/or evidentiary
sanctions forbidding Defendant from presenting at trial any documents found to
be forged or fraudulent. As such, the Court would not grant terminating
sanctions even assuming Plaintiff’s contentions are well-taken.
Second, the Court does not find a violation
of the cited Penal Code sections on this record. Defendant has not offered the allegedly
altered documents into evidence, or presented them for any fraudulent or
deceitful purpose such as attempting to pass off the newly added terms as part
of the parties’ contract. Instead, Defendant produced the documents pursuant to
an ongoing obligation to produce the “updated” onboarding documents with terms
from after Plaintiff’s termination date. This does not demonstrate Defendant’s
intent to pass off the supposedly altered onboarding paperwork as the true and
correct terms of the parties’ agreement. To be clear, presenting altered contract
terms as genuine would be fraudulent and a sanctionable discovery abuse.
However, the evidence does not support this conclusion. Defendant only presented the allegedly
altered documents as responsive to a document request, not as any specific
evidence. Moreover, Defendants produced the initial documents. This undercuts
any attempt to frame Defendant’s new production as fraudulent, since they
already gave Plaintiff the unaltered onboarding documents.
Accordingly, the motion is DENIED. Monetary
sanctions are imposed in the reduced amount of $750.00 against Plaintiff
payable to Defendant within 30 days.
Motion to Compel Further
Defendant Pepperdine University
moves to compel Plaintiff Breanna C. Webb’s verified further responses to
Pepperdine’s RPD, Set Four, nos. 26, 27, 28, 29, 31, 33-37, 39-43, and 45-48.
Pepperdine fails to demonstrate
good cause in support of the various document requests at issue in RPD set
four. Counsel explains that Pepperdine seeks to “reacquire” thousands of
documents containing confidential, proprietary, and sensitive restricted data
and information that Plaintiff allegedly misappropriated and transferred from
Pepperdine’s Google Drive to her email address on February 22, 2024. (Onyemaobim
Decl., ¶ 8; See See Decl.) After informal efforts failed, Defendant served Plaintiff
with the Request for Production, Set Four, on July 18, 2024. Plaintiff served
objections along with some disorganized production. (Onyemaobim Decl., ¶¶ 10,
13, Exs. F-H.)
Defendant fails to demonstrate how
these RPDs are reasonably calculated to lead to the discovery of admissible
evidence on any issue in this case. The documents would not lead to evidence which
proves or disproves Plaintiff’s claims for wrongful termination. Plaintiff’s
claims are not dependent in any way on her misappropriation of trade secrets,
which allegedly occurred well after the termination. Likewise, production of
the sought documents would not lead to the discovery of evidence supporting
Defendant’s 26 affirmative defenses to the wrongful termination claims. For
instance, Defendant does not explain how Plaintiff’s misappropriation of
proprietary documents would support an after-acquired evidence defense. (See Salas
v. Sierra Chemical Co. (2014) 59 Cal.4th 407, 431 [“The doctrine of
after-acquired evidence refers to an employer's discovery, after an
allegedly wrongful termination of employment or refusal to hire, of information
that would have justified a lawful termination or refusal to hire.”].) Here,
Plaintiff allegedly stole the documents after she was fired. On this record, any responsive documents to
the RPDs have no tendency in reason to affect any issue pled in this action.
The Court recognizes that these
documents might support an independent claim for trade secret
misappropriation or breach of contract. Defendant, however, has not asserted any
such claim through a cross-complaint or other pleading in this proceeding.
Accordingly,
the motion is DENIED.