Judge: Ralph C. Hofer, Case: 23GDCV01806, Date: 2024-08-30 Tentative Ruling
Case Number: 23GDCV01806 Hearing Date: August 30, 2024 Dept: D
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TENTATIVE
RULING
Calendar: 5
Date: 8/30/2024
Case No: 23
GDCV01806 Trial Date: January
26, 2026
Case Name: Miriam
A. v. Glendale Adventist Medical Center, et al.
MOTION TO COMPEL FURTHER RESPONSES TO
DOCUMENT DEMANDS
Moving Party: Defendant
Glendale Adventist Medical Center dba Adventist Health Glendale
Responding Party: Plaintiff
Miriam A.
RELIEF REQUESTED:
Further Response to Requests for Production of Documents,
Set One, Nos. 19, 28, 30, 33 and 34.
FACTUAL BACKGROUND:
Plaintiff Miriam
A. alleges that plaintiff was hired as a registered nurse by defendants
Glendale Adventist Medical Center and Adventist Health System/West on July 7,
2023, and was set to start her first day of work on August 21, 2023. In July of 2023, prior to plaintiff’s first
day at work, plaintiff made requests to defendants for religious
accommodations, as plaintiff is Jewish and observes the Jewish Sabbath as part
of plaintiff’s religious practice.
Specifically, plaintiff requested not to work on the Jewish Sabbath and
Jewish holidays, which plaintiff alleges are accommodations easily made by
nearly every hospital in California.
The complaint alleges that on
August 9, 2023, plaintiff was told by defendants’ HR that “we have not found a
work around to meet the department needs that will also accommodate your
religious exemption request.” Plaintiff
alleges that defendants made no good faith efforts to accommodate plaintiff’s
request and effectively rescinded their offer of employment to plaintiff due to
plaintiff’s religion and request for religious accommodation.
The complaint alleges causes of
action for religious discrimination and retaliation for request for religious
accommodation.
The file
shows that on January 25, 2024, plaintiff filed a request for dismissal without
prejudice of the action as to defendant Adventist Health System/West only,
which dismissal was entered as requested the same date.
ANALYSIS:
Procedural
CRC
Rule 3.1345 requires that, “Any motion involving the content of a discovery
request or the responses to such a request must be accompanied by a separate
statement.”
Under
the Rule:
“The
motions that require a separate statement include a motion:…
“(3)
To compel further responses to a demand for inspection of documents or tangible
things;…”
CRC
Rule 3.1345(c) provides that a separate statement is a “separate document filed
and served with the discovery motion that provides all the information
necessary to understand each discovery request and all the responses to it that
are at issue. This separate statement
“must include” for each discovery request to which a further response is
requested, “(1) The text of the request, interrogatory, question or inspection
demand” in addition to “(2) The text of each response, answer or objection, and
any further responses or answers, ...” (emphasis added). The subdivision further states that “The
separate statement must be full and complete so that no person is required to
review any other document in order to determine the full request and the full
response.”
Here,
the declaration in support of the motion indicates that plaintiff served
Responses to the Requests for Production, then served “Amended Responses,” on
March 12, 2024, then served “Second Amended Responses” on April 19, 2024, and
then served “Third Amended Responses” on May 15, 2024. [Mercurio Decl., paras. 3, 7, 13, 17, Exs. B, F, H and J].
The
separate statement includes a “Response” to each Request, and for Request No.
19, an “Amended Response,” but does not include any Amended Responses for the
other Requests, to which the exhibit shows Amended Responses were served. [See
Ex. F]. The separate statement does not
include the Second Amended Responses at all, when the exhibit shows that a
Second Amended Response was served to all Requests which are the subject of
this motion. [See Ex. H]. There is no mention of the Third Amended Response
when the exhibit shows there was a Third Amended Response served to Request No.
19. This situation makes the motion
confusing for the court and has required the court to consult other documents
to make sense of the motion.
In
People ex rel. Harris v. Sarpas (2014) 225 Cal.App.4th 1539,
the court of appeal held:
“The trial court denied the second motions to
compel because Defendants had not shown a reasonable and good faith attempt at
meeting and conferring and because the motions failed to comply with the
applicable rules regarding separate statements. We find no abuse of discretion
in the trial court's rulings.”
People, at
1554
In
Mills v. U.S. Bank (2008) 166 Cal.App.4th 871, the court of
appeal considered a challenge to a trial court’s order denying a motion to
compel discovery, which the trial court had denied on both substantive and
procedural grounds. The court of appeal held, “we conclude that the procedural
basis cited by the trial court was a sufficient basis for the exercise of
discretion to deny the motion to compel.”
Mills, at 892. The court
of appeal accordingly did not discuss the substantive ground addressed by the
trial court. Mills, at 892, n.
23. In Mills, a separate
statement had been submitted, but did not set forth the full responses to each
of the discovery requests at issue, instead grouping together several requests,
stating responses “in relevant part” and truncating some responses. The court
of appeal also noted that the statement provided statements of reasons for
compelling further responses which were confusing because it was not indicated
which request or requests the reasons related to. Mills, at 893. The court of appeal rejected an argument
that the full responses had been available to the court as the responses were
attached to the motion, holding that the rule expressly forbids this practice
by requiring the statement to be “full and complete,” and expressly not
permitting material to be incorporated into the separate statement by
reference. Mills, at 893, citing
former Rule 335 and current Rule
3.1020(c).
The
court of appeal considered former Rule 335, which has not been significantly
modified in these respects in the current rule, and concluded:
“We conclude that because Plaintiffs did not
comply with the requirements of former rule 335, the trial court was well
within its discretion to deny the motion to compel discovery on that basis.
(Cf. Neary v. Regents of University of California (1986) 185 Cal.App.3d 1136, 1145 [230 Cal. Rptr.
281] [describing trial court's denial of motions to compel
discovery because of a nonconforming separate statement].)”
Mills, at 893.
Here,
the separate statement is similarly defective.
The court would be within its discretion to deny the motion on this
ground alone but elects not to do so.
Meet and Confer
The opposition argues that this
motion was filed improperly after plaintiff sent defendant a meet and confer
letter on June 6, 2024, offering to work out a compromise, but instead of
responding to the letter, counsel filed the motion on June 7, 2024, including
with the motion a declaration which falsely denies receiving the June 6, 2024
letter.
The
Mercurio Declaration submitted with the moving papers, dated June 7, 2024
states that counsel for defendant sent several emails, and states, “When I did
not hear back, I emailed Plaintiff’s counsel on June 4, 2024 to inquire into
Requests Nos. 19, 28, 30, 33, and 34. I
did not receive a response.” [Mercurio
Decl., para. 19]. The June 6, 2024
email is not attached to the moving papers or in any way referenced.
The
opposition argues that counsel for defendant has refused to correct this
misrepresentation, made under oath. The
opposition argues that counsel does not deny that the declaration included a
misrepresentation when it was signed, but that counsel believes the signing of
the false statement was justified because the motion had already been completed
on June 6, 2024 and was ready to be filed.
The opposition includes a copy of an email
from counsel for plaintiff to counsel for defendant dated June 10, 2024, in
which counsel for plaintiff states: “your motion to compel and
declaration are purposeful misstatements to the court.
We responded to your concerns on June 6,
2024 and proposed a compromise on several issues.
You did not respond to our compromise (you
failed to meet and confer); you just filed a motion to compel and signed
declaration on June 7, 2024 (the day after we responded) claiming that
we “never responded” to your email meet and confer.
That was a terrible misrepresentation, and we
intend to bring this up with the court.”
[Levy Decl., Ex. 2,
bold in original].
Later
that same date, counsel for plaintiff responded to defendant stating that
counsel for defendant waited to respond to meet and confer efforts until almost
4 pm on June 6, the day before the motion to compel deadline, yet did not
suggest extending the motion to compel deadline, and that given that the
“motion was already completed by the time you sent your below email, AHGL has
filed its Motion to Compel.” [Levy
Decl., Ex. 3].
This
representation effectively concedes that the June 6 email had been received,
but the motion and the declaration stating plaintiff had never responded were
filed with those misstatement anyway. The reply also concedes that the email was
received, but argues it was sent “well after AHGL had already finalized its
moving papers.” [Reply, p. 1:8-10]. The declaration dated June 7, 2024 stating
that no response to meet and confer had been received by that date is
accordingly false. The court does not
condone such conduct on the part of an officer of the court.
Under
CCP § 2031.310, permitting a party to move to compel a further response to
document demands, such a motion “shall be accompanied by a meet and confer
declaration under Section 2016.040.”
CCP section 2031.310(b)(2).
Section
2016.040 requires:
“A meet and confer declaration in support of a
motion shall state facts showing a reasonable and good faith attempt at an
informal resolution of each issue presented by the motion.”
As discussed below, the June 6, 2023
meet and confer letter by plaintiff offered some compromises with respect to
the current discovery dispute, which could have avoided at least portions of
this motion to be brought before the court, and it appears that counsel
deliberately misled the court concerning the status of the dispute. The reasonableness and good faith of the meet
and confer efforts is accordingly subject to question. However, the court is not inclined to
disregard the motion on this ground, but only out of concern for the interest
of judicial efficiency. These
circumstances will be addressed in connection with the requests for monetary
sanctions.
Substantive
CCP
§ 2031.310 provides that a party demanding a document inspection may move for
an order compelling further responses to the demand if the demanding party
deems that:
“(1) A
statement of compliance with the demand is incomplete.
(2) A representation of
inability to comply is inadequate, incomplete, or evasive.
(3) An objection in the response
is without merit or too general.”
Under
CCP § 2031.310 (b)(1), “The motion shall set forth specific facts showing good
cause justifying the discovery sought by the inspection demand.”
The
burden is on the moving party to show both relevance to the subject matter and
specific facts justifying discovery. Glenfed
Develop. Corp. v. Superior Court (1997, 2nd Dist.) 53 Cal.App.4th 1113,
1117. Once good cause is established by
the moving party, the burden then shifts to the responding party to justify any
objections made to document disclosure.
See Hartbrodt v. Burke (1996, 2nd Dist.) 42 Cal.App.4th 168,
172-174.
Request No. 19
This request seeks:
“All DOCUMENTS, including but not limited to
telephone bills or telephone records, that reflect any telephone calls made by any AHGL employee to YOU from July 14, 2023 to the
present regarding YOUR pending employment with AHGL or YOUR request for a
religious accommodation.”
The amended response is a series of objections, including overbroad, burdensome, that the
documents are equally available to defendant, that the request seeks premature
disclosure of expert opinion, privacy, and that the request is vague, compound
and calls for a legal conclusion.
Plaintiff further objects to the extent the request calls for
information protected by the attorney-client privilege, or work product
privilege. The response then
states:
“Plaintiff objects that Defendant has not
provided Plaintiff with a list of phone numbers used by its employees to
communicate with Plaintiff.
Notwithstanding, subject to, and without
waiving these objections, Plaintiff responds as follows: Plaintiff has produced
all responsive, non-objectionable, non-privileged documents in her possession,
custody, or control. See ANDRUSIER 100-110. Discovery
and investigation continue.”
Defendant argues that the request
seeks discoverable information bearing directly on plaintiff’s claims, in
effect that defendant made no good faith efforts to accommodate plaintiff’s
religious observance, as the telephone records would reflect the number of
times defendant’s representatives attempted to or contacted plaintiff regarding
her requests and pending employment.
Defendant points out that, in fact, plaintiff does not object to the
request as seeking irrelevant material.
Defendant
also argues that although plaintiff represents that she has produced all responsive
documents, it appears that plaintiff has not produced all responsive documents,
as in response to a separate request, plaintiff produced documents showing that
a senior HR advisor at defendant called plaintiff twice on September 11, 2024
[sic] to discuss a proposed accommodation, but the production to Request No. 19
redacts all phone calls for the month of September 2023. Defendant argues that the records should be
produced unredacted.
Defendant also argues that any
privacy concerns are not implicated as an expectation of privacy only extends
to the content of the conversations not to records that indicate that the
conversation occurred, which is what is requested here.
Defendant
cites to United States v. Lustig (9th Cir. 1977) 555 F.2d
737, in which the Ninth Circuit noted in a footnote, in a criminal case, in
reliance on federal law:
“[Defendant] also claims that the use of his
telephone records as evidence violated his right to privacy. It is well
established that the “expectation of privacy” only extends to the content of
telephone conversations, not to records that conversations took place. United
States v. Baxter, 492 F.2d 150, 167 (9 Cir. 1973). See also United States v.
Miller, 425 U.S. 435, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976) (subpoena to bank
custodian for checking accounts does not violate rights of defendant).
Lustig, at
747, n.10.
This showing is sufficient to shift
the burden to plaintiff to justify objections.
Plaintiff in opposition argues that plaintiff
in fact produced phone records, with redactions to conceal the non-relevant
calls, and with no redactions of calls from defendant’s personnel. Plaintiff argues that defendant wrongly
indicates that plaintiff improperly redacted calls made on September 11, 2023,
but plaintiff has proved that these accusations are false.
Plaintiff’s
counsel explains that counsel prepared the document production of the phone
records by making a list of 24 possibly relevant phone numbers, including the
phone number ending with the digits 8363 mentioned in the moving papers, and
that counsel had to create the list of numbers because defendant’s counsel
refused to identify the phone numbers defendant thought were relevant. [Levy Decl., paras. 6-8]. Counsel for plaintiff indicates that counsel
“did not redact any call to or from the 8363 phone number.” [Levy Decl., para. 8]. The declaration also indicates that had
defense counsel told plaintiff’s counsel they suspected calls to or from the
8363 phone number had been redacted, plaintiff’s counsel could have confirmed
that this was not the case. [Levy Decl.,
para. 9]. The declaration attaches a
document which counsel indicates is a copy of the phone records with the calls
from September 11, 2023 unredacted. [Levy Decl., para. 5, Ex. 4]. Plaintiff’s counsel states that those phone
records show “that Plaintiff did not make or receive any calls from the number
specified by Defendant in the moving papers (ending with the digits 8363) at
any time on September 11, 2023.” [Levy
Decl., para. 5]. The unredacted document
submitted as Exhibit 4 appears to show all incoming and outgoing calls from
that date, and no calls to or from the specified number are listed. [Ex. K].
As
confirmed in the reply, the request does not seek information regarding calls
to and from irrelevant third parties but is expressly
limited to calls “made by any AHGL employee to YOU…regarding YOUR pending
employment with AHGL or YOUR request for a religious accommodation.”
It would appear that a reasonable first step
here would be having counsel for defendant identify the phone numbers defendant
believes could lead to discovery of discoverable materials, particularly as
defendant is in a better position to identify those numbers. It would appear that plaintiff’s counsel has
in good faith searched all of the documents produced in this case by plaintiff
and by defendant to generate a list of 24 telephone numbers, which included the
number on which defendant now relies. [Levy
Decl., paras. 7, 8]. It is clear that
the numbers which were on plaintiff’s counsel’s list should be disclosed, and
defendant can then make any additions to that list.
Counsel
for plaintiff is ordered to redact the records according to those lists, and
serve a code compliant response, as the current response does not in fact
comply with the code.
Under CCP section 2031.210, a response shall
either be a statement of compliance, a representation that the party lacks the
ability to comply, or an objection.
With respect to a statement of compliance,
CCP section 2031.220 requires:
“A
statement that a party to whom an inspection demand has been directed will
comply with the particular demand shall state that the production, inspection,
and related activity demanded will be allowed either in whole or in part, and
that all documents or things in the demanded category that are in the
possession, custody, or control of that party and to which no objection is
being make will be included in the production.”
Plaintiff’s further response must comply
with this section.
To the extent defendant seems to
argue that defendant is entitled to all unredacted phone records, as the making
and receiving of calls is not considered private information, that argument is
based on federal case law under the federal discovery statutes. However, plaintiff points out that California
case law recognizes in some measure that courts “generally consider residential
telephone and address information private…”
Puerto v. Superior Court (2008) 158 Cal.App.4th
1242, 1252.
In
Puerto, the Second District addressed a circumstance where plaintiffs brought
an action against their former employer for alleged wage and hour violations
and sought through Form Interrogatory No. 12.1 the contact information of other
employees. The employer in that case
had identified by name and position between 2,600 and 3,000 employees. The trial court granted a motion to compel a
further response to the interrogatory, and ultimately approved a process
whereby a third-party administrator sent a letter to each affected individual
informing them of the request for their address and phone number in connection
with the litigation and permitting the individuals to give their permission, or
to opt out.
The
Second District granted a writ of mandate and held that the trial court had
abused its discretion in placing obstacles to plaintiffs obtaining the contact
information.
The
Second District reviewed the standards applicable to the privacy analysis in
connection with contact information, balanced the need for the information
against the intrusiveness into the privacy of individuals, and concluded that
the contact information was discoverable.
The
Second District set forth the following standard to be applied in privacy
analysis cases, as articulated by the California Supreme Court in Pioneer
Electronics (USA), Inc. v. Superior Court (2007) 40 Cal.4th 360:
“First, a claimant must
possess a “legally protected privacy interest.” (Hill, at p. 35.) Second, the claimant must have a reasonable
expectation of privacy under the particular circumstances, including the
customs, practices, and physical settings surrounding particular activities. (Id. at pp.
36–37.) Third, the
invasion of privacy must be serious in nature, scope, and actual or potential
impact. Trivial invasions do not create a cause of action. (Id. at p. 37.) If there is a reasonable expectation of
privacy and the invasion of privacy is serious, then the court must balance the
privacy interest at stake against other competing or countervailing interests,
which include the interest of the requesting
party, fairness to the litigants in conducting the litigation, and the
consequences of granting or restricting access to the information. (Pioneer, at pp. 370–371.)”
Puerto, at 1250-1251.
The
Second District in Puerto was dealing with a situation where percipient
witness employees had already been identified by defendant.
Plaintiff
argues here that this is not a situation where defendant seeks contact
information for relevant witnesses, but a situation where plaintiff, and the
third parties with whom she was in contact by telephone at the time, have a
privacy interest in those transactions and phone records. Here the defendant has cited, and plaintiff
has been unable to find, any legal authority for the proposition that
irrelevant, non-witnesses must be outed.
Plaintiff
has established a recognized privacy interest in her call records other than
those to and from defendant made by defendant’s employees, and an interest on
the part of the third parties reflected in those records, a reasonable
expectation of privacy, and a serious invasion if wholesale discovery is
permitted. Defendant has not argued that
there is a countervailing interest which would be served by disclosure of calls
which do not involve defendant’s entitlement to information that would have a
relation to plaintiff’s allegation that defendant made “no good efforts to
accommodate” plaintiff’s religious observance. Defendant in the reply concedes that the
request specifically seeks records of conversations with defendant’s employees,
not conversations with non-witnesses. In balancing the interests here, the court
believes that the method of proceeding outlined above best accommodates the
parties’ respective interests.
Plaintiff
has failed to justify any objections beyond the privacy objection as to numbers
not identified with defendant or its agents or employees. The plaintiff is
ordered to provide further response without other objections.
As a final
note, when plaintiff serves further responses, plaintiff should be aware that
the court does not view as acceptable a response to discovery which states, “Discovery
and investigation continue.” Defendant
is entitled to a full and complete response now, based on plaintiff having
complied with her obligation to investigate in response to the discovery
request. See CCP section 2031.230,
requiring an attestation from the responding party that “a diligent search and
a reasonable inquiry has been made in an effort to comply with” a document
demand.
Requests Nos. 28
and 33
Request No. 28 seeks:
“All diaries, records, notes, calendar
entries, or memoranda created by YOU from July 14, 2023 to the present, which
relate to YOUR pending employment with AHGL or any of
the allegations in YOUR COMPLAINT. This Request expressly excludes any records or notes created for or at the
direction of YOUR attorney in this matter.”
Request No. 33 seeks:
“An unaltered and unedited printout or copy of
the current or past contents of any professional and/or social networking pages
or accounts that YOU maintain or maintained, that
contain information RELATED TO YOUR claims in this action, including but
not limited to LinkedIn, Facebook, Instagram, TikTok or Twitter.”
The responses consist of the same
objections set forth above, and do not include substantive responses. The objections again include that the requests
are overbroad, burdensome, that the documents are equally available to
defendant, that the requests seek premature disclosure of expert opinion,
privacy, and that the requests are vague, compound and call for a legal
conclusion. Plaintiff further objects to
the extent the requests call for information protected by the attorney-client
privilege, or work product privilege.
Defendant argues that the requests
are directly relevant to claims that defendant made no good faith efforts to
accommodate plaintiff’s request, effectively rescinded its offer of employment,
and that plaintiff has suffered severe emotional distress caused by the alleged
conduct.
The information is relevant and
discoverable. This showing is sufficient
to shift the burden to plaintiff to justify objections and failure to comply.
Plaintiff in opposition argues that the
requests are vague, as asking for any records that relate to her employment
with defendant or any allegation in the complaint. Plaintiff argues that she alleges matters
such as that she resides in Los Angeles, is Jewish and observes the Jewish
sabbath, so the requests as written are impossible to understand. Plaintiff also argues that Request No. 28,
seeking documents “created by YOU,” would include notes created by plaintiff’s
attorney. This assertion is nonsense,
as plaintiff can reasonably read the request to apply to documents created by
plaintiff, as the request expressly states the Request “excludes any records or
notes created for or at the direction of YOUR attorney in this matter.” Defendant points this out in the reply.
Plaintiff primarily argues in
connection with these requests that plaintiff in the June 6, 2024
correspondence offered to respond to these requests as narrowed to diaries,
records, notes, calendar entries, or memoranda created by plaintiff and the
other documents which are “discussing or disclosing employment with Defendant
or her religious accommodation request,” but defendant never responded to that
offer, but filed the motion falsely concealing the proposal from the
court.
It
would appear that this narrowing is not really necessary, as the Requests seek
the specified documents relating to “YOUR pending employment with AHGL or any
of the allegations in YOUR COMPLAINT,” and documents that “that contain
information RELATED TO YOUR claims in this action.”
Under
CCP section 2017.010, “any 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.” The section specifically provides that
“discovery may relate to the claim or defense of the party seeking discovery or
of any other party….”
Plaintiff
has failed to justify this suggested narrowing and is ordered to serve
responses to these Requests as propounded.
Plaintiff
has failed to discuss or justify any of the other objections. Plaintiff accordingly is ordered to serve
further responses to these Requests which include all information requested,
without objections, and to produce all responsive documents. The further responses must fully comply with
the code and provide a code-complaint statement of compliance, as discussed
above.
Request No. 30
This request seeks:
“All DOCUMENTS that RELATE TO any medical or
psychological treatment YOU have received for emotional distress or any mental
condition in the five (5) years prior to July 14, 2023, including but not
limited to medical records, billings, appointments, and prescriptions.”
The response consists of the same
objections set forth above, with no substantive response, including objections
that the request is overbroad, burdensome, that the documents are equally
available to defendant, that the request seeks premature disclosure of expert
opinion, privacy, and that the request is vague, compound and calls for a legal
conclusion. Plaintiff further objects to
the extent the request calls for information protected by the attorney-client
privilege, or work product privilege.
Defendant argues again that
plaintiff has not objected that the request seeks irrelevant or not
discoverable materials and establishes that the request bears directly on
plaintiff’s claim for severe emotional distress. Defendant argues that plaintiff has placed
her emotional state at issue by claiming such emotional distress and waived her
right to privacy regarding her emotional state by pursuing emotional distress
damages in this action.
Under
Evidence Code § 990 and 1010, a patient enjoys a privilege to refuse to
disclose any “confidential communication” between himself and a treating
physician. Section 996 provides an
exception where the patient is a litigant, stating that there “is no
privilege... as to a communication relevant to an issue concerning the
condition of the patient if such issue has been tendered by ...[the]
patient.”
Defendant
cites to Heller v. Norcal Mutual Ins. Co. (1994) 8 Cal.4th
30, 43, in which the California Supreme Court observed:
“By
placing her physical condition in issue in the [previous medical malpractice]
litigation, plaintiff's expectation of privacy regarding that condition was
substantially lowered by the very nature of the action.”
Heller, at 43.
Defendant
also cites to Britt v. Superior Court (1978) 20 Cal.3d 844, in which the
California Supreme Court reversed a trial court’s order granting a motion to
compel discovery of a plaintiff homeowner’s medical histories in a nuisance and
personal injury case against an airport, concluding:
“While [plaintiffs] may not withhold
information which relates to any physical or mental condition which they have
put in issue by bringing this lawsuit, they are entitled to retain the
confidentiality or all unrelated medical or psychotherapeutic treatment they
may have undergone in the past.”
Britt, at
862.
Defendant argues that under Britt,
defendant is entitled to discovery not only concerning any current treatment
plaintiff is undergoing related to her claimed emotional distress, but also to
discovery concerning mental or emotional issues in the past which may have
contributed to the emotional distress claimed here. Britt, at 864, n. 9 (“It should be understood,
of course, that insofar as a number of injuries or illnesses… have contributed
to a medical condition placed in issue by a plaintiff, defendant is entitled to
obtain information as to all such injuries or illnesses.”) Defendant argues that this includes
conducting discovery regarding potential outside stressors unrelated to plaintiff’s
potential employment with defendant.
Defendant
primarily relies on Vinson v. Superior Court (1987) 43 Cal.3d 833, 842, in
which the California Supreme Court considered a case in which a plaintiff had
sued her former employer for sexual harassment and alleged that defendant’s
conduct caused her to suffer emotional distress. In response to a motion to compel plaintiff
to undergo a medical and mental examination “to test the true nature and extent
of her injuries,” plaintiff argued that such an examination would violate her right
to privacy. Vinson, at 838.
Defendant
relies on the Court’s rejection of this argument in which the Court stated:
“In the case at bar, plaintiff haled
defendants into court and accused them of causing her various mental and
emotional ailments. Defendants deny her charges. As a result, the existence and
extent of her mental injuries is indubitably in dispute. In addition, by
asserting a causal link between her mental distress and defendants' conduct,
plaintiff implicitly claims it was not caused by a preexisting mental
condition, thereby raising the question of alternative sources for the
distress. We thus conclude that her mental state is in controversy.”
Vinson, at 839-840.
The
Court found that in that case the trial court appropriately had found good
cause for an order compelling plaintiff to undergo the requested physical and
mental examination, noting that defendants “must be allowed to investigate the
continued existence and severity of plaintiff’s alleged damages.” Vinson,
at 840-41.
Defendant
argues that here, like the plaintiff in Vinson, plaintiff has waived her
privacy right by claiming that she suffers from “severe emotional distress”
caused by defendant’s alleged conduct. Plaintiff’s treatment for such alleged
emotional distress is therefore relevant and discoverable, and she has waived
any right of privacy in this information. Defendant also points out that
defendant appropriately has narrowed the scope of this request to apply only to
treatment for plaintiff’s emotional distress or mental condition, and has
reasonably limited the request to five years prior to July 14, 2023.
Plaintiff
in opposition argues that defendant has made an overbroad request for five
years of medical records that have anything to do with emotional distress, or
any kind of mental issue, no matter how unrelated to wrongful termination. Plaintiff argues that since the information
sought is private information, defendant must establish that the information
sought is directly relevant to the claims.
As
noted above in Puerto, generally, in
evaluating a discovery dispute which involves a privacy claim the trial court
should apply the framework set forth in Hill v. National Collegiate
Athletic Assn. (1994) 7 Cal.4th 1.
First,
a claimant must possess a “legally protected privacy interest.” Hill, at
35. Second, the claimant must have a
reasonable expectation of privacy under the particular circumstances, including
the customs, practices, and physical settings surrounding particular
activities. Hill, at 36-37. Third, the invasion of privacy must be
serious in nature, scope, and actual or potential impact. Hill, at 37. If there is a reasonable expectation of
privacy and the invasion of privacy is serious, then the court must
balance the privacy interest at stake against other competing or countervailing
interests. Hill, at 37-40.
In
Williams v. Superior Court (2017) 3 Cal.5th 531 the
California Supreme Court reiterated that the Hill analysis is to be
applied in determining the scope of discovery of private information and
emphasized that the burden to establish a privacy interest remains
initially with the party asserting such an interest. Williams, at 552.
The Court rejected case law, relied
upon by plaintiff here, which requires a party seeking discovery of private
information to establish a compelling interest, instead placing the initial
burden on the party asserting a privacy objection. Williams, at 557.
Here,
the opposition does not acknowledge this authority, so plaintiff does not
directly attempt to establish an objectively reasonable expectation of privacy
in the given circumstances, or a threatened intrusion that is serious. However,
even assuming the showing had been made, defendant has shown how the requests
serve an important countervailing interest, in exploring the mental state which
plaintiff has placed in issue in this lawsuit.
In weighing these considerations, the
court finds that the need for information which could shed light on the source
of any emotional distress plaintiff claims to have suffered due to defendant’s
alleged discriminatory conduct, which plaintiff has herself put in issue in
this case, outweighs plaintiff’s privacy interests as reasonably limited by the
facts of this case. The request is also
reasonably limited in subject matter and timeframe. Plaintiff’s insistence in the opposition that
this discovery be denied in its entirety is not reasonable if plaintiff intends
to continue to pursue significant damages, she claims were suffered due to
emotional distress.
Request No. 34
This request seeks:
“Any DOCUMENTS, including any cached or
archived printouts or electronic or hard copies, of the contents of any
professional and/or social networking pages or accounts that YOU maintain or
maintained, including but not limited to LinkedIn, Facebook, Instagram, TikTok
or Twitter, that contain information that reveals, refers to, or RELATES TO any
emotion, feeling, or mental state YOU experienced from five (5) years prior to
the date of YOUR response to this Request to the date of YOUR response to this
Request.”
The same boilerplate objections set
forth above are asserted.
Defendant argues that this request
seeks directly relevant evidence to the claims that plaintiff suffered severe
emotional distress. Defendant argues
that during meet and confer efforts, plaintiff’s only objection appeared to be
that the request is highly invasive and overbroad. Defendant again argues that plaintiff has
placed her mental condition at issue and waived her right to privacy in
documents which relate to her claim for emotional distress.
The
moving papers cite a federal district court decision, Rosales v. Crawford
& Co. (2021 US. Dist. Ct. E.D.
Cal) 2021 WL 4429468, in which, in applying the federal discovery rules, the
district court stated in connection with a request for production of a
plaintiff’s social media content:
““Generally, [social networking] content is
neither privileged nor protected by any right of privacy.” Mailhoit v. Home
Depot U.S.A., Inc., 285 F.R.D. 566, 570 (C.D. Cal. 2012). As relevant here,
“[s]uch information from social media is relevant to claims of emotional
distress because social media activity, to an extent, is reflective of an
individual's contemporaneous emotions and mental state.” Hinostroza v.
Denny's Inc., No. 2:17-cv-02561-RFB-NJK, 2018 WL 3212014, at *6 (D. Nev.
June 29, 2018). The request, being sufficiently narrowly tailored to seek
relevant information, is appropriate and plaintiff is compelled to respond.”
Rosales, at 5-6
Defendant also cites to People v.
Valdez (2011) 201 Cal.App.4th 1429, a California criminal case,
in which the court of appeal found that MySpace postings were admissible in a criminal
trial, but not for the truth of any matters stated in them, in that case, that defendant
was a member of a gang.
Plaintiff again argues that the
request is overly broad, pertaining to any emotion, feeling or mental state of
any kind that plaintiff experienced for any reason, and argues that defendant
has not met its burden to demonstrate that such information would be directly
relevant to plaintiff’s claims.
Again, plaintiff applies the incorrect
standard and burden with respect to privacy objections and fails to meet her
initial burden to establish a privacy interest which has not been waived. Plaintiff also fails to address or
distinguish the legal authorities concerning the discoverability of alternative
causes for emotional distress, and the lack of a privacy interest in social
media activity. The request is reasonably
limited as propounded, covering five years from the date of the response, which
would cover the time since the emotional distress was suffered and less than
five years of prior social media activity.
The court again finds that even if plaintiff had met any initial burden,
the balance of interests here favor compelling a full response to the
request.
Plaintiff has not attempted to
justify any of the other objections. The
motion as to this request accordingly is granted. Plaintiff will be ordered to serve a further
response to this request, without objection, which fully responds to the
request, and includes a code-compliant statement of compliance, and to produce
all responsive documents.
Sanctions
This posture leaves the issue of
sanctions, which are sought by both sides. CCP § 2031.310 (h) provides that the court
“shall impose a monetary sanction...against any party, person, or attorney who
unsuccessfully makes or opposes a motion to compel further response to a
demand, unless it finds that the one subject to the sanction acted with substantial
justification or that other circumstances make the imposition of the sanction
unjust.”
Under
CCP § 2023.010, misuse of the discovery process includes, “(e) Making, without
substantial justification, an unmeritorious objection to discovery”; and “(f)
Making an evasive response to discovery.”
Where there has been misuse of the discovery process, under Section 2023.030(a), the court “may impose 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.”
The
burden is on the party subject to sanctions to show substantial justification
or injustice. Mattco Forge, Inc. v.
Arthur Young & Co. (1990, 2nd Dist.) 223 Cal.App.3d 1429,
1436.
Here,
plaintiff has unsuccessfully opposed the motion for the most part, made
objections which plaintiff has failed to justify, and made the major portion of
the motion necessary, and reasonable sanctions will be awarded in favor of
defendant.
Plaintiff
argues that sanctions are warranted because defendant unsuccessfully has brought
this motion, unreasonably seeking all social media, all medical records
mentioning emotional distress or mental health, and private telephone records,
and that this unreasonable overreach warrants sanctions. The motion is granted in large part, however. Plaintiff has not successfully opposed it,
except to the extent production of unredacted telephone records will not be
required, which defendant does not appear to have been seriously pursuing.
Plaintiff
also argues that sanctions are warranted due to defendant’s concealment of the
June 6, 2024 email from the court.
Plaintiff cites no statutory authority other than that which permits
sanctions for unsuccessfully bringing a motion to compel, CCP § 2031.310 (h), when
the motion here is largely granted.
Plaintiff does not seek sanctions under the statutory authority
concerning failure to meet and confer in good faith. The court is concerned that the June 6 email
should have been disclosed, and plaintiff had offered to produce notes and
diaries on a narrowed basis, and further meet and confer may have avoided the
motion as to one of the five requests.
However, given that plaintiff has not sought sanctions under the meet
and confer statute, the sanctions requested by plaintiff are denied.
However,
the court will take into account the reasonableness of the sanctions requested
in light of defendant’s failure to pursue a possible informal resolution of the
dispute as to one of the five requests at issue, and adjust the sanctions
awarded to defendant accordingly.
The
sanctions sought are $6,100, which includes 3 hours spent preparing the motion
by defendant’s attorney, Gabrielle Mercurio, at $445 per hour ($1,335), and 10
hours spent by “Candice T. Zee, the Shareholder on this matter,” at an hourly
rate of $550 ($5,500) (this totals $6,835, not the $6,100 sought). It is not clear who this shareholder is, or
that the shareholder has charged defendant for any services, so that the
charges would be “reasonable expenses” “incurred” by defendant as required. See CCP section 2023.030(a). It is not clear what services the shareholder
provided in the preparation of the motion, which is based largely on legal
arguments. The claim for such expense is
not reasonable under the circumstances.
Hence, the court awards no more than the reasonable sum incurred for the
work of attorney Mercurio which is three hours at $445.00 per hour for a total
of $1,335.00.
RULING:
Defendant Glendale
Adventist Medical Center dba Adventist Health Glendale’s Motion for Compel
Further Responses is GRANTED.
Request No. 19:
Motion is GRANTED in part.
The Court notes that
the Request as propounded is expressly limited to calls “made by any AHGL
employee to YOU…regarding YOUR pending employment with AHGL or YOUR request for
a religious accommodation.”
Any argument by
defendant that it is entitled to all unredacted telephone records reflecting
calls other than those made by any AHGL employee is DENIED.
However, the Court
orders the parties to proceed with respect to identifying the discoverable
information as follows:
Plaintiff is ordered
to produce within five days the list of 24 numbers which plaintiff concluded
were associated with defendant and its employees and which plaintiff used in
redacting the telephone records produced.
Within five days of receipt of that information from plaintiff,
defendant is ordered to serve plaintiff with a list of telephone numbers
defendant identifies as numbers of employees which defendant believes could
lead to the discovery or discoverable materials, in effect, telephone numbers
identified as those which would have been used by defendant’s employees during
the relevant time period. Plaintiff is
then ordered within ten days of receipt of the list from defendant to serve a
further response to the Request and produce all responsive records with the
information affiliated with all of the numbers provided unredacted.
The further response
is to be without objection, other than a privacy objection as to the material
redacted. The
further response must provide all information requested, and must fully comply
with CCP §§
2031.210 and 2031.220, including a statement that plaintiff will
comply with the demand, including a statement that the production, inspection,
and related activity demanded will be allowed either in whole or in part, and
that all documents or things in the demanded category that are in the
possession, custody, or control of plaintiff and to which no objection is being
made will be included in the production. Plaintiff is ordered to produce all
responsive documents with the further response.
The Court does not
find acceptable a response to discovery which states, “Discovery and
investigation continue.”
Motion as to Requests
Nos. 28, 30, 33 and 34 is GRANTED.
Plaintiff is ordered
to serve further responses to each of the Requests, without objection. The Court has considered plaintiff’s
objections, and find they lack merit, or have been waived, or plaintiff has
failed to justify them, and all objections are OVERRULED.
To the extent
plaintiff asserts various privacy objections, the Court notes that plaintiff
has placed her mental and emotional state into issue in this matter by claiming
damages for emotional distress, and that plaintiff in the opposition papers
fails to meet any initial burden of establishing the existence of a valid
privacy objection which involves issues which have not been placed in issue by
plaintiff in this action, and that even if plaintiff had met this initial
burden, defendant has established an important competing interest in discovering
the basis for plaintiff’s claims, and the sources and severity of any claimed
emotional distress. The Court has
balanced these competing interests, considered the fact that the requests are
narrowly tailored in subject matter and timeframe, and finds that the balance
favors disclosure of the information.
Plaintiff’s further
responses must provide all responsive information requested in each request,
and must fully comply with CCP §§ 2031.210 and 2031.220, including a
statement that plaintiff will comply with each particular demand, including a
statement that the production, inspection, and related activity demanded will
be allowed either in whole or in part, and that all documents or things in the
demanded category that are in the possession, custody, or control of plaintiff
and to which no objection is being made will be included in the production. Plaintiff is ordered to produce all
responsive documents with the further response.
Further responses to
be served within ten days.
Monetary sanctions requested by moving party: Utilizing a
lodestar approach, and in view of the totality of the circumstances, the Court
finds that the total and reasonable amount of attorney’s fees and costs
incurred for the work performed in connection with the pending motion is $1,335.00 (3.0 hours @ $445/hour) (3 hours requested—attorney)
and (10.0 hours @ $550/hour—shareholder)
[Amount Requested $6,100], which sum is to be awarded in favor of defendant
Glendale Adventist Medical Center dba Adventist Health Glendale, and against
plaintiff Miriam A., payable within 30 days. CCP §§ 2031.310(h), 2023.010 (e)
and (f), and 2023.030(a).
Monetary sanctions requested by plaintiff are DENIED.
DEPARTMENT D IS CONTINUING
TO CONDUCT AND ENCOURAGE
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