Judge: Richard Y. Lee, Case: 30-2020-01165080, Date: 2022-10-27 Tentative Ruling

Plaintiff Dania Husen (“Plaintiff”) filed three motions seeking to compel Defendant Climatec, LLC (“Defendant” or “CLIMATEC”) to provide complete and straightforward responses to: (1) Plaintiff’s Form Interrogatories Employment Law Nos. 201.6 and 207.2 within fourteen (14) days, without objection as well as monetary sanctions against Defendant and its attorneys of record Brandon Witkow and Matthew Hood, in the amount of $2,085.00; (2) Plaintiff’s Special Interrogatories 67, 69-71, 73-84, 87-88, 90, 92 and 94 within fourteen (14) days, without objection as well as monetary sanctions against Defendant and its attorneys of record Brandon Witkow and Matthew Hood, in the amount of $2,985.00; and (3) Plaintiff’s Request for Production Nos. 75-86, 95-119 within fourteen (14) days, without objection as well as monetary sanctions against Defendant and its attorneys of record Brandon Witkow and Matthew Hood, in the amount of $2,535.00.

On October 12, 2022, Plaintiff filed a Notice withdrawing her Motion as to the Form Interrogatories.

Also on October 12, 2022, Plaintiff filed Notices stating the parties were able to resolve the discovery dispute as to certain of the Special Interrogatories and Request for Production of Documents. As such, only Special Interrogatory No. 70 and Request Nos. 80-82, 84-85, and 95-117 remain at issue.

Special Interrogatories.

Here, Plaintiff seeks to compel Defendant to provide a further response to Special Interrogatory No. 70 which states: “Please describe with specificity the FINANCIAL RESOURCES of DEFENDANT’S Southern California operations during the period of January 1, 2019 through the present.” 

Defendant responded by objecting on the grounds the interrogatory is vague and ambiguous as to the definition of financial resources; seeks information that is not relevant to the claims and defenses of this action; and seeks information concerning potential damages and Defendant’s capability to satisfy any judgment obtained, which is premature and not permitted pursuant to Code of Civil Procedure § 3295(c) at this stage of the proceedings.

Plaintiff contends Defendant’s objections are without merit and that Defendant waived its objections by failing to timely respond by April 29, 2022 as the parties did not reach an agreement providing Defendant with an extension to respond.

Whether Defendant Waived its Objections?

Code of Civil Procedure section 2030.290(a) states if a party fails to serve a timely response, all objections are waived including ones based on privilege or work product.

Plaintiff contends that Defendant waived its objections because it never provided it with an extension beyond April 29, 2022 to serve responses to Plaintiff’s second set of discovery.  In Opposition, Defendant contends that the parties exchanged multiple communications between April 29 and May 13, 2022 as to the status of Defendant’s discovery responses and Defendant reasonably believed that Plaintiff had agreed to provide it until May 13, 2022 to provide such responses given that counsel for Plaintiff never denied Defendant’s request for extension and never stated that Defendant had waived its objections for failing to provide Responses by April 29, 2022.

Here, the evidence produced shows that Plaintiff provided Defendant with an extension through April 29, 2022 to provide its responses to the second set of Plaintiff’s discovery. (See Witkow Decl., ¶ 28, Exh. 20 [Emails dated April 12, 2022 7:59 a.m. and response email dated April 12, 2022 at 12:35 p.m.]). Thereafter, Defendant failed to serve the discovery by April 29, 2022; counsel for Plaintiff inquired as to the status of the discovery on May 2, 2022; counsel for Defendant stated he got caught up with a federal court filing and expected to have the responses well in advance of a May 24, 2022 deposition; that on May 6, 2022, counsel for Defendant informed Plaintiff that he was working as fast as possible to have the client approve the amended responses and stated “To be safe, lets put Wednesday, 5/11 as the revised deadline”; that counsel for Plaintiff responded on May 10, 2022 by only requesting that Plaintiff’s motion to compel deadline be pushed back two weeks to May 27 (and did not object to the 5/11 revised deadline); that on May 11, 2022, counsel for Defendant informed Plaintiff he was waiting on the client to verify the responses and asked “so can we push the response date to Friday?”; that no response to this email was given by Plaintiff; that on May 13, 2022 at 4:05 p.m., counsel for Defendant stated he would be needing another day or two to provide the responses and stated he “assume[d] that is okay given our past agreements”; and that in response, Plaintiff’s counsel on May 13, 2022 at 4:24 p.m. first informed Defendant that she had not given Defendant any extension beyond April 29, 2022 to provide the responses and stated that Defendant had waived all objections. (See Witkow Decl., ¶¶ 15 and 28, Exhs. 10 and 25.)

Based on the evidence before the Court, the Court finds that Defendant’s Response was not untimely. Plaintiff never objected to Defendant’s request for a further extension and based on the parties’ conducts, it was reasonable for Defendant to have assumed that Plaintiff had agreed to the further extension. Accordingly, the Court finds that Defendant did not waive its objections.

Whether Special Interrogatory Seeks Relevant Information And/or Whether the Information Sought Is Pre-mature?

Plaintiff contends that it is entitled to a substantive response to Special Interrogatory No. 70 because it seeks relevant information; that Defendant is defending this action on the grounds Plaintiff was denied her request for accommodations because it posed an undue hardship on Defendant’s operations; that the financial resources of Defendant is a relevant factor in determining whether an accommodation poses an “undue hardship” on an employer’s operations; and that this discovery is necessary to evaluate whether the “financial cost of people continuing to do [Plaintiff’s] work” when balanced against Defendant’s financial resources, is sufficient to create an undue hardship; and that to the extent a comparison of the two data sets (financial cost of Plaintiff’s accommodations vs. Defendant’s financial resources) reveals that there would be no undue hardship, this would tend to show the falsity of the termination reason and establish pretext.

In Opposition, Defendant contends discovery of its “FINANCIAL RESOURCES’ is protected from pre-trial disclosure pursuant to Civil Code section 3295(c) and Plaintiff did not obtain a court order allowing it to discover this information as required by Civil Code section 3295(a)(2). Defendant further contends that despite Plaintiff’s contention that the information is discoverable to assess Defendant’s defense of undue hardship if Plaintiff’s request for accommodation was granted, Defendant is not contending there was a financial undue burden if it were to grant the accommodation.  Rather, Defendant contends it has stated to Plaintiff through deposition testimony and discovery responses that its contention is that Plaintiff’s failure to return to in-person work would have created an operational burden on the company.

Civil Code section 3295 states in pertinent part, as follows:

“(a) The court may, for good cause, grant any defendant a protective order requiring the plaintiff to produce evidence of a prima facie case of liability for damages pursuant to Section 3294, prior to the introduction of evidence of:

“(1) The profits the defendant has gained by virtue of the wrongful course of conduct of the nature and type shown by the evidence.

“(2) The financial condition of the defendant.

“(b) Nothing in this section shall prohibit the introduction of prima facie evidence to establish a case for damages pursuant to Section 3294.

“(c) No pretrial discovery by the plaintiff shall be permitted with respect to the evidence referred to in paragraphs (1) and (2) of subdivision (a) unless the court enters an order permitting such discovery pursuant to this subdivision...”

Here, although Plaintiff contends it is seeking information pertaining to Defendant’s “financial resources” in order to evaluate Defendant’s contention that it was unable to grant Plaintiff’s requested accommodation because it would have posed an undue burden on its operations, Special Interrogatory No. 70 does seek information pertaining to the “financial condition” of Defendant. The term “FINANCIAL RESOURCES” is defined as “gross and net monthly revenue, gross and net month profit, and monthly expenses”.  As such, the Court finds that Plaintiff is not entitled to this information without a prior court order as required under section 3294(c).

Further, Defendant provides evidence that it is not contending that Plaintiff’s accommodation would have subjected it to financial burden, only an operational burden. (See Whitkow Decl., ¶ 29, Exh. 21 [Response to Special Interrogatory No. 70 wherein CLIMATIC responded that “the financial cost of an employee otherwise expected to show up in person working from home while lying in bed would include the opportunity cost to other employees who would be responsible to perform Plaintiff’s job functions as well as the inefficiency created by remote work where other employees for which Plaintiff was required to consult with for projects were physically present at the work site.”]; see also Id., ¶ 19, Exh. 22 [Deposition of Plaintiff’s PMK (Megan Amator), Plaintiff asked: Q: In what way would Ms. Husen working from home impose an undue and unreasonable burden on the company and her team members? A: It would not be efficient. The whole essential purpose of the role is to be on-site support . . .”) [109:22 – 110-3]; see also 110:15 – 111:1 (“she was supposed to be on-site to have conversations with the technicians, with the sales team, review drawings. Some of the drawings are done by hand”).].) As such, the Court also finds that this interrogatory does not seek information reasonably calculated to lead to the discovery of admissible evidence.

Accordingly, the Court DENIES the Motion as to Special Interrogatory No. 70.

Requests for Production of Documents.

C.C.P. section 2031.300(a), similarly, allows the propounding party to a request for production of documents to move for an order compelling further responses to the requests.

Here, Plaintiff seeks to compel Defendant to provide further responses to Request Nos. 80-82, 84-85, and 95-117. Request No. 80 seeks documents pertaining to Defendant’s financial resources to determine the impact of granting Plaintiff’s accommodations; Request Nos. 81 and 84 seek documents Defendant relied on in reaching the decision that accommodating Plaintiff’s disability would result in an undue hardship on Defendant; Request Nos. 82 and 85 seek documents evidencing that accommodating Plaintiff’s disability would result in an undue hardship on Defendant; and Request Nos. 95-117 seek documents pertaining to communications between decisionmakers regarding Plaintiff’s request to work remotely, request for leave of absence from August 23, 2019 through October 19, 2019, Plaintiff’s pregnancy, and Plaintiff’s pregnancy leave.

As to Request No. 80, the Motion is DENIED for the same reasons as set forth above concerning Special Interrogatory No. 70.

As to Request Nos. 81, 82, 84, 85, after objecting on the grounds the request was vague, Defendant responded by stating: “see responsive, non-privileged documents previously produced. Documents withheld due to privilege have been identified on a privilege log.”

As to Request Nos. 95-117, Defendant asserted objections on the grounds the requests are vague, seeks information protected by the attorney-client and/or work product doctrine, seeks irrelevant information, seeks documents that have already been answered and thus is harassing. Defendant then responded by stating: “Climatec has conducted a diligent search and has provided the responsive, non-privileged documents it located. Climatec has provided a privilege log identifying documents withheld due to privilege.”

Plaintiff seeks to compel further responses to Request Nos. 81, 82, 84, 85, and 95-117 on the grounds Defendant waived any objections because its Response was not timely served. However, as set forth above, the Court finds that Defendant’s Response was not untimely.

Accordingly, the Motion is DENIED as to Request Nos. 81, 82, 84, 85, and 95-117.

Sanctions.

As to the issue of sanctions, C.C.P. sections 2030.300(d) and 2031.300(d) state that “the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a further response to interrogatories [or response to a demand for inspection], 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.”

Here, the Court DENIES Plaintiff’s request for sanctions as the Court cannot find that Defendant acted without substantial justification.

Defendant to give notice.