Judge: Ronald F. Frank, Case: 22TRCV00523, Date: 2023-08-03 Tentative Ruling
Case Number: 22TRCV00523 Hearing Date: August 3, 2023 Dept: 8
Tentative Ruling¿¿
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HEARING DATE: August 3, 2023¿¿
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CASE NUMBER: 22TRCV00523
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CASE NAME: Bryant
Cardenas v. Vitis Inc., et al.
MOVING PARTY: Plaintiff, Bryant Cardenas
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RESPONDING PARTY: Defendant,
Vitis, Inc.
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TRIAL DATE: October, 23, 2023
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MOTION:¿ (1) Motion to Compel Further
Responses to Requests for Production, Set Two.
(2)
Request for Monetary Sanctions
Tentative Rulings: (1) Motion to Compel Further
Responses to Requests for Production, Set Two categories 1, 2, 3 and 4, is
GRANTED. A verified written response,
without objection, is required and production of the responsive documents must
also be made. The Court will inquire at the hearing as to
how much time is needed and will consider postponing the current trial date to
enable fair opportunity to evaluate the documents produced and determine any
follow-up discovery needed
(2)
Monetary Sanctions of $2,000 are GRANTED, payable within 30 days by Defendant
and/or its counsel.
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I. BACKGROUND¿¿¿
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A. Factual¿¿¿
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On June 29, 2022, Plaintiff, Bryant
Cardenas (“Plaintiff”) filed a Complaint against Defendants, Vitis, Inc.,
Anthony Gray, and DOES 1 through 25. The Complaint alleges causes of action
for: (1) Harassment in Violation of FEHA; and (2) Sexual Battery.
Plaintiff notes that on March 22, 2023, he
served Defendant Vitis, Inc. with Requests for Production of Documents, Set 2.
On May 25, 2023, Plaintiff contends that Vitis served its verified responses.
However, Plaintiff contends that such responses were insufficient, and that
Responding Party needed to supplement its responses. On May 26, 2023, Plaintiff
notes it sent a meet and confer letter addressing the defects to each of the
deficient responses. Plaintiff notes that Vitis’s counsel communicated about
the issues raised by Plaintiff. Further, Plaintiff notes his counsel tried to
reach Defense counsel twice via telephone, but his calls were not returned.
Moreover, Plaintiff notes Defense Counsel’s voice mailbox was full and
Plaintiff’s counsel sent him a text message asking for a return call. As such,
Plaintiff has filed this Motion to Compel Further Responses of Request for
Production of Documents, Set Two.
B. Procedural¿¿¿
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On June 27, 2023, Plaintiff filed its Motion to Compel
Further. On July 21, 2023, Vitis filed an opposition. On July 26, 2023,
Plaintiff filed a reply brief.
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¿II. MEET AND CONFER ¿¿¿
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Plaintiff
asserts that on May 26, 2023, meet and confer efforts were attempted to no
avail. However, Defendant Vitis contends that Plaintiff failed to meet and
confer in good faith. However, upon review of the parties’ papers, the Court
notes that the meet and confer letter says that the May 26, 2023 letter stated
that unless Defendants were to provide full and complete objection free
responses on or before June 2, 2023, Plaintiff would have no other alternative
but to file the motion to compel further. At that time, the deadline to bring a motion
to compel further responses was to expire in a week, and a dispute over the
subject RFP remained. The Court is
satisfied that there was a bona fide effort to meet and confer before filing
the motion. The Court agrees with Mr.
Jacobs that a better meet and confer process would have been more robust, and
that the one-week deadline to fully respond was perhaps unreasonably
abbreviated, but the motion was not field until June 27. Further, given defense counsel’s dismissive
response to the May 26 letter (sent two days after the written response were
served) it is difficult for the defense to argue that plaintiff’s counsel
failed to make an attempt to discuss claimed deficiencies in the written
responses. The responses were nothing
but objections and no documents were produced, so it should hardly have come as
a surprise that a discovery motion was looming.
In the future, if the motion-filing deadline looms, counsel on either
side could propose or offer to extend the 45-day period to allow further time
to meet and confer.
¿III. ANALYSIS¿¿
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“Unless
otherwise limited by order of the court in accordance with this title, any
party may obtain discovery regarding any matter, not privileged, that is
relevant to the subject matter involved in the pending action or to the
determination of any motion made in that action, if the matter either is itself
admissible in evidence or appears reasonably calculated to lead to the
discovery of admissible evidence.” (Code of Civ. Proc. § 2017.010.) For
discovery purposes, information is regarded as relevant “if it might reasonably
assist a party in evaluating the case, preparing for trial, or facilitating
settlement thereof.” (City of Los Angeles v. Superior Court (2017) 9
Cal.App.5th 272, 288.)
A
motion to compel further responses to a demand for inspection or production of
documents (“RFP”) 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 to compel further production must set
forth specific facts showing good cause justifying the discovery sought by the
inspection demand. (See Code Civ. Proc., § 2031.310(b)(1).) In Digital Music
News LLC v Superior Court (2014) 226 Cal.App.4th 216 at 224, the Court
defined “good cause” as a showing that there “a disputed fact that is of
consequence in the action and the discovery sought will tend in reason to prove
or disprove that fact or lead to other evidence that will tend to prove or
disprove the fact.” If the moving party has shown good cause for the
requests for production, the burden is on the objecting party to justify the
objections. (Kirkland v. Sup.Ct (2002) 95 Cal. App.4th 92, 98.)
"The
court shall limit the scope of discovery if it determines that the burden,
expense, or intrusiveness of that discovery clearly outweighs the likelihood
that the information sought will lead to the discovery of admissible
evidence." (Cal. Code of Civ. Proc. § 2017.020(a).) Generally, objections
on the ground of burden require the objecting party to produce evidence of (a)
the propounding party's subjective intent to create burden or (b) the amount of
time and effort it would take to respond. (See West Pico Furniture Co. of
Los Angeles v. Superior Court In and For Los Angeles County (1961) 56
Cal.2d 407, 417.) However, no such evidence is necessary where discovery is
obviously overbroad on its face. (See Obregon v. Superior Court (1998)
67 Cal.App.4th 424, 431.)
B.
Discussion
Here,
Plaintiff argues that such requests are relevant and directly pertain to the
issue of Defendants’ liability for workplace harassment that caused Plaintiff
to be harmed. The main bulk of Plaintiff’s analysis section is only arguing in
a conclusory way and rattling off legal support. As such, the Court will look
to Plaintiff’s separate statement for more argument. After review of the
separate statement (which this Court notes only provides for Demand No. 1-3,
even though Plaintiff is requesting further responses to Demands 1-4), the
Court has determined that Defendant’s responses are not Code compliant, and
contain nonapplicable objections. The Court overrules the virtually identical
objections asserted as to each of the 4 categories of requested documents. The Requests seek defined-term categories, focusing
written or email communications between Dabirian and Gray. Communications
including emails between co-workers regarding Plaintiff during Plaintiff’s
employment are reasonably calculated to lead to the discovery of evidence that
might be admissible at trial, including communications expressing how Dabirian
and Gray had treated or planned to deal with Plaintiff going forward.
E-mails
on the employer’s email server are not private and, absent some proof that
personnel policies exempt co-worker emails on the company email account, there
is generally no reasonable expectation of privacy in intra-company emails. California Penal Code Section 632, subdivision (c), has two clauses. The first
clause states that “ ‘confidential communication’ includes any
communication carried on in circumstances that may reasonably indicate that any
party to the communication desires it to be confined to the parties thereto”;
the second clause “excludes a communication made in a public gathering
or in any legislative, judicial, executive or administrative proceeding open to
the public, or in any other circumstance in which the parties to the
communication may reasonably expect that the communication may be overheard or
recorded.” (Italics added.) But an
employment discrimination claimant or witness does not have a reasonable
expectation of privacy in a workplace telephone conversation that was secretly
recorded. (See Reynolds v. City and
County of San Francisco (9th Cir. 2014) 576 Fed.Appx. 698, 703.) The Second
District noted two decades ago that “the use of computers in the employment
context carries with it social norms that effectively diminish the employee's
reasonable expectation of privacy with regard to his use of his employer's
computers.” (TBG Ins. Services Corp.
v. Superior Court (2002) 96 Cal.App.4th 443, 452.) Since defendant bears the burden of proving
its privacy objection and no evidence has been presented indicting that the
employment policies at Plaintiff’s workplace provided a basis for an expectation
of privacy in intra-company emails stored on the company server, the Court
finds Defendant failed to carry its burden as to this objection.
Similarly, Defendant
has failed to demonstrate that the burden of locating and producing the
requested emails and other documents is unreasonable or “unduly burdensome or
expensive, taking into account the needs of the case, the amount in
controversy, and the importance of the issues at stake in the litigation.” (Code Civ. Proc., § 2019.030.)
Since
the balance of Defendant’s opposition is that Plaintiff did not meet and confer
in good faith (which the Court discusses above), the Court grants Plaintiff’s
Motion and orders that Vitis provide a verified written response to Requests
Nos. 1 through 4, without objection, and to produce the responsive
documents. The Court will inquire at
oral argument how much time defense counsel reasonably believes it will take to
provide the same. The more time needed
to comply, the more inclined the Court would be to continue the trial.
C.
Sanctions
Sanctions are mandatory in connection with
motions to compel responses to interrogatories and requests for production of
documents against any party, person, or attorney who unsuccessfully makes or
opposes a motion to compel.¿¿(CCP. §§ 2030.290(c), ¿2030.300(d), ¿2031.300(c),¿and
2031.310(h).) However, sanctions are not mandatory if the court “finds that the
one subject to the sanction acted with substantial justification or that other
circumstances make the imposition of the sanction unjust.”¿¿(Id.)
Here,
Plaintiff asserts it is entitled to sanctions against Defendant and its
attorney of record in the sum of $2,741.25. Plaintiff basis this amount on its
counsel’s hourly rate of $275. Plaintiff’s counsel further notes that it spent
two hours to meet and confer, three hours in preparing the motion to compel and
related documents, one hour anticipated to draft a reply brief, another hour
for the hearing, and $60 filing fee. The Court finds that the hourly rates and
time spent on the moving and reply papers are reasonable, but reduces the claimed
amount to $2,000. As such, the Court GRANTS Plaintiff’s Request for sanctions
jointly against Defendant Vitis and its counsel, payable within 30 days.
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