Judge: Maurice A. Leiter, Case: 20STCV08916, Date: 2022-08-19 Tentative Ruling

Case Number: 20STCV08916    Hearing Date: August 19, 2022    Dept: 54

Hearing Date: August 19, 2022

Department 54, Judge Maurice A. Leiter

Motion to Compel Further Deposition Answers

Moving Party: Plaintiff Larry Whithorn

Responding Party: Defendants City of West Covina, Lloyd Johnson, Tony Wu, Glenn Kennedy, and David Carmany

T/R:     PLAINTIFF’S MOTION IS GRANTED.

            PLAINTIFF TO NOTICE.

If the parties wish to submit on the tentative, please email the courtroom at SMCdept54@lacourt.org with notice to opposing counsel (or self-represented party) before 8:00 am on the day of the hearing

The Court considers the moving papers, opposition, and reply.

BACKGROUND

This is an employment action. On May 21, 2020, Plaintiff Larry Whithorn filed the operative second amended complaint against Defendants City of West Covina, Lloyd Johnson, Tony Wu, Glenn Kennedy, and David Carmany, asserting causes of action for (1) discrimination in violation of FEHA; (2) harassment in violation of FEHA; (3) retaliation in violation of FEHA; (4) failure to provide accommodation; (5) failure to engage in the interactive process; (6) failure to prevent discrimination, harassment and retaliation; (6) violation of CFRA; (7) violation of Labor Code § 1102.5; (9) violation of the Firefighter Bill of Rights; (10) wrongful termination in violation of public policy; (11) intentional infliction of emotional distress; (12) negligent infliction of emotional distress; (13) defamation; (14) coerced self-publication defamation; (15) negligent hiring supervision and retention.

Plaintiff was employed as the Fire Chief for the City of West Covina beginning in 2014. Plaintiff alleges he was terminated because of his disability and age, for taking CFRA leave, and for reporting harassment.

ANALYSIS

“If a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponent's control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.” (CCP § 2025.480(a).) The motion “shall be accompanied by a meet and confer declaration under Section 2016.040.”  

Plaintiff moves to compel further deposition answers from Defendant Tony Wu, a member of the West Covina City Council. At Wu’s deposition, Plaintiff’s counsel asked what council members consider when affirming or disaffirming a city manager’s decision to terminate an employee, and whether council members specifically consider the employee’s employment history with the city. Defendants’ counsel instructed Wu not to answer these questions, citing the deliberative process privilege.

“Under the deliberative process privilege, senior officials of all three branches of government enjoy a qualified, limited privilege not to disclose or to be examined concerning not only the mental processes by which a given decision was reached, but the substance of conversations, discussions, debates, deliberations and like materials reflecting advice, opinions, and recommendations by which government policy is processed and formulated.” (Regents of University of California v. Superior Court (1999) 20 Cal.4th 509, 540, 85 Cal.Rptr.2d 257, 976 P.2d 808.) The privilege rests on the policy of protecting the “ ‘decisionmaking processes of government agencies [.]’ ” (Id. at p. 541, 85 Cal.Rptr.2d 257, 976 P.2d 808.) “The key question in every case is ‘whether the disclosure of materials would expose an agency's decisionmaking process in such a way as to discourage candid discussion within the agency and thereby undermine the agency's ability to perform its functions.’ [Citation.]” (Times Mirror Co. v. Superior Court (1991) 53 Cal.3d 1325, 1342, 283 Cal.Rptr. 893, 813 P.2d 240.)

(San Joaquin Cnty. Loc. Agency Formation Comm'n v. Superior Ct. (2008) 162 Cal. App. 4th 159, 170–71.)

            Plaintiff asserts that his interest in obtaining this discovery outweighs the purpose of the deliberative process privilege. Plaintiff alleges that Wu played an active role in the circumstances leading to Plaintiff’s firing. According to the complaint, Wu attempted to make “unethical side deals” with Plaintiff to gain more political power, which Plaintiff resisted. Wu eventually sought to gain a majority on the City Council with a plan to fire Plaintiff. Plaintiff alleges that this course of conduct undermined his ability to receive a fair appeal of his termination. (SAC ¶¶ 14-15.)  

The deliberative process privilege is not absolute; it may not be used as a shield to prevent discovery into key matters in the lawsuit. See Convertino v. U.S. DOJ (D.D.C. 2009) 669 F.Supp.2d 1, 4. Wu’s considerations in affirming the City Manager’s decision to terminate Plaintiff’s employment are relevant and discoverable. They may support Plaintiff’s case that his termination was pretextual and his appeal was unfair. And prohibiting this discovery would allow Defendants to assert the City Council properly affirmed the termination while shielding Defendants from providing discovery that may undermine this claim.

The Court also has balanced the parties’ respective interests in this matter. (See Jones v. Hernandez (S.D. Cal. 2017) 2017 U.S. Dist. LEXIS 110745 *7.) As discussed, the information sought may be highly relevant to showing government impropriety, including pretextual reasons for Plaintiff’s termination. This compelling interest outweighs Defendants’ interest in protecting its decisionmaking process. Defendants’ arguments that Wu already has testified he did not consider Plaintiff’s protected status in affirming the termination, and that Plaintiff is unlikely to prevail in this case, do not end the inquiry. Plaintiff is entitled to explore this issue.

            Plaintiff’s motion is GRANTED. Wu must answer questions already posed during his deposition, as well as follow-up questions, concerning the deliberative process or intent of defendants in deciding to uphold the City Manager’s proposal to terminate Plaintiff.