Judge: Stephen P. Pfahler, Case: 23STCV18256, Date: 2024-08-06 Tentative Ruling

Case Number: 23STCV18256    Hearing Date: August 6, 2024    Dept: 68

Dept. 68

Date: 8-6-24

Case #: 23STCV18256

Trial Date: 12-9-24

FURTHER DOCUMENTS & INTERROGATORIES

MOVING PARTY: Defendant, Thrive Market Technologies, Inc.

RESPONDING PARTY: Plaintiff, Miriel Paschel

RELIEF REQUESTED

Motion to Compel Further Responses to Request for Production of Documents

Motion to Compel Further Responses to Special Interrogatories

SUMMARY OF ACTION

On August 2, 2023, Plaintiff Miriel Paschel filed a complaint for 1. Discrimination In Violation Of Gov’t Code §§12940 Et Seq.; 2. Retaliation In Violation Of Gov’t Code §§12940 Et Seq.; 3. Failure To Prevent Discrimination And Retaliation In Violation Of Gov’t Code §12940(K); 4. Failure To Provide Reasonable Accommodations In Violation Of Gov’t Code §§12940 Et Seq.; 5. Failure To Engage In A Good Faith Interactive Process In Violation Of Gov’t Code §§12940 Et Seq.; 6. Violation Of California Family Rights Act, Gov’t Code §§12945.2 Et. Seq.; 7. For Declaratory Judgment; 8. Wrongful Termination In Violation Of Public Policy; 9. Retaliation (Labor Code §98.6); 10. Denial Of And Discrimination Based Upon The Use Of Sick Leave (Labor Code §§ 233, 234, And 246.5); 11. Failure To Pay Wages; 12. Failure To Provide Meal (Lab. Code §§226.7, 512); 13. Failure To Provide Itemized Wage Statements (Cal. Labor Code §§226 Et Seq.); 14. Waiting Time Penalties (Cal. Labor Code §§201-203); and 15. Unfair Competition (Cal. Bus. & Prof. Code §17200 Et Seq.).

RULING: Granted.

Defendant, Thrive Market Technologies, Inc. moves to compel further responses to request for production of documents, numbers 26-29, 44, and Special Interrogatories, number 3, from Plaintiff Miriel Paschel. Defendant maintains the objections are too general, and the requests seek information directly addressing the claims raised in the operative complaint and defenses. Plaintiff in a three (3) court day, five calendar late opposition reiterates the objections and contends the interrogatories are overbroad, harassing, seek irrelevant information, invade personal privacy, and seeks privileged information. The late filed opposition lacks a responsive separate statement. Defendant in reply challenges the late filed opposition; the new arguments on now waived objections; and, contends the opposition lacks substantive address of the arguments compelling further responses.

The court lists all identified items:

REQUEST FOR PRODUCTION NO. 26: Any and all DOCUMENTS evidencing moneys YOU have received from the government since YOUR separation, including but not limited to unemployment or SDI benefits.

REQUEST FOR PRODUCTION NO. 27: Any and all DOCUMENTS REFLECTING any COMMUNICATIONS between YOU and the State of California Employment Development Department (EDD) from August 2, 2019 to the present.

REQUEST FOR PRODUCTION NO. 28: Any and all DOCUMENTS YOU received from the State of California Employment Development Department (EDD) from August 2, 2019 to the present.

REQUEST FOR PRODUCTION NO. 29: Any and all DOCUMENTS YOU sent to the State of California Employment Development Department (EDD) from August 2, 2019 to the present.

REQUEST FOR PRODUCTION NO. 44: Any AND all DOCUMENTS RELATING TO PLAINTIFF’S contention in Paragraph 73 of the Complaint, "On approximately July 18, 2022, faced with a lack of income due to the expiration of his disability insurance benefits in January, compounded by the Defendants' failure to reinstate him, the Plaintiff decided to apply for unemployment benefits to attenuate his financial hardships.

Plaintiff objected to all disputed requests for production as follows:

Objection. Overbroad, burdensome and harassing. This request and the underlying requests also seek documents that may be protected from disclosure by the attorney client privilege and/or work product doctrine. Plaintiff further objects to each and every request to the extent that the information it seeks, or any information in addition to that provided in this response, is equally available to the propounding party. This request also seeks documents and other information that is protected from disclosure pursuant to California Evidence Code §1040, California Unemployment Insurance Code §2111, improper use of which or attempt to access is a misdemeanor, and is expressly inadmissible for any purpose in this case, all pursuant to California Unemployment Insurance Code §1094. See, also, Crest Catering Co. v. Superior Court (1965) 62 Cal.2d 274, 277 [sections 1094 and 2111 of the Unemployment Insurance Code “manifest a clear legislative purpose to preserve the confidentiality of information submitted to the Department of Employment

The court only considers the actual objections presented in the responses. The new arguments in the late opposition, including privacy and relevance are not properly raised as either a lodged objection or within a timely opposition. (Scottsdale Ins. Co. v. Superior Court (1997) 59 Cal.App.4th 263, 274.) Even if the court considered the improperly raised new argument, the conclusive nature of the argument precludes specific consideration of the applicability. On the remaining objections, as addressed further below, the court finds invalid objections and orders a privilege log as to the requests for production.

The challenged equally available objection lacks support as well in that the court cannot determine whether Plaintiff concedes to knowledge required for a response or lacks the subject information, and therefore declines to reply. (Bunnell v. Sup.Ct. (1967) 254 Cal.App.2d 720, 723–724.) Given certain subparts to the responses admit to a lack of knowledge on corporate procedures, it appears Plaintiff concedes to a lack of ability to completely answer. The court therefore finds the objection lacks support. If Plaintiff asserts a lack of knowledge Plaintiff may appropriately state said inability instead of interjecting further obstreperous objections. (See Code Civ. Proc., § 2030.220, subd. (c).)

The attorney-client privilege attaches to a confidential communication between the attorney and the client and bars discovery of the communication irrespective of whether it includes unprivileged material.” (Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 734.) The transmission of information between third parties and counsel also maintain attorney client privilege protection, if the communication is in further interest of the client. (Evid. Code, § 952.) “Once that party establishes facts necessary to support a prima facie claim of privilege, the communication is presumed to have been made in confidence and the opponent of the claim of privilege has the burden of proof to establish the communication was not confidential or that the privilege does not for other reasons apply.” (Costco Wholesale Corp. v. Superior Court, supra, 47 Cal.4th at p. 733.)

The work product privilege applies where the sought after documents contains Defendant’s “impressions, conclusions, opinions or legal research or theories,” the information is protected by the work product doctrine. (Code Civ. Proc., § 2018.030(c).) “An objecting party may be entitled to protection if it can make a preliminary or foundational showing that answering the interrogatory would reveal the attorney's tactics, impressions, or evaluation of the case, or would result in opposing counsel taking undue advantage of the attorney's industry or efforts”].) (Coito v. Superior Court (2012) 54 Cal.4th 480, 502.) Notes, statements, and impressions of the case are protected by the work product doctrine. A list of potential witnesses is not work product. (Id. at p. 495; Nacht & Lewis Architects, Inc. v. Superior Court (1996) 47 Cal.App.4th 214, 217–218.)

The court cannot determine the basis of the subject privilege objections. It remains unclear whether any and all communications with the various government agencies were in fact only conducted in anticipation of litigation and/or under the guidance of counsel. To the extent Plaintiff maintains the objection, Plaintiff is ordered to produce a privilege log of each and every withheld item. (Code Civ. Proc., § 2031.240, subd. (c).) The claims of privilege under Evidence Code section 1040, et seq. shall also be included in the privilege log.

SPECIAL INTERROGATORY NO. 3: IDENTIFY and DESCRIBE IN DETAIL all COMMUNICATIONS between YOU and the California Employment Development Department (EDD) from April 5, 2022 through the present.

Plaintiff objected to Special Interrogatory No. 3 as follows:

Objection. This interrogatory seeks information that is overbroad, oppressive, and harassing. This interrogatory impermissibly seeks premature disclosure of expert witness testimony and work product, in violation and circumvention of Code of Civil Procedure section 2034.210, et seq. The following responses are given without prejudice to Plaintiff’s right to produce evidence of any subsequently discovered fact or facts that this responding party may later recall. Plaintiff according reserves the right to change any and all answers, herein, as additional facts are ascertained. This entire set of interrogatories contains an improper and unauthorized preface or instruction, which has not been approved under Chapter 17 (commencing with Section 2033.710), in violation of Code of Civil Procedure section 2030.060(d). Further, this improper and unauthorized preface or instruction purports to impose obligations upon the responding party beyond those required by the Code of Civil Procedure or any other authority. This interrogatory is not full and complete in and of itself, as a preface and/or instruction, which has not been approved under Chapter 17 (commencing with Section 2033.710) is included. Vague and ambiguous as to “IDENTIFY”, “DESCRIBE IN DETAIL”, and “YOU.” This request also seeks documents and other information that is protected from disclosure pursuant to California Evidence Code §1040, California Unemployment Insurance Code §2111, improper use of which or attempt to access is a misdemeanor, and is expressly inadmissible for any purpose in this case, all pursuant to California Unemployment Insurance Code §1094. See, also, Crest Catering Co. v. Superior Court (1965) 62 Cal.2d 274, 277 [sections 1094 and 2111 of the Unemployment Insurance Code “manifest a clear legislative purpose to preserve the confidentiality of information submitted to the Department of Employment

The court only considers the actual objections presented in the responses. The new arguments including privacy and relevance are not properly raised in opposition. (Scottsdale Ins. Co. v. Superior Court, supra, 59 Cal.App.4th at p. 274.)

The form of question objections lack merit. Defendant may not intentionally misconstrue a work for obstreperous purposes. “Indeed, where the question is somewhat ambiguous, but the nature of the information sought is apparent, the proper solution is to provide an appropriate response.” (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 783 superseded by statute on unrelated ground as stated in Guzman v. General Motors Corp. (1984) 154 Cal.App.3d 438, 444.)

On the oppressive, and harassing objections, objecting parties must file evidence detailing the amount of work involved, in order to support objections based upon burden and oppression. (West Pico Furniture Co. v. Sup. Ct. (1961) 56 Cal.2d 407, 417.) “[S]ome burden is inherent in all demands for discovery. The objection of burden is valid only when that burden is demonstrated to result in injustice.” (Id. at p. 418.) The opposition and objections lack any support.

The overbroad objection lacks support. (Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 431; Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 224–225.) The interrogatory directly and categorically references claims within the complaint and put at issue by Plaintiff.

The premature expert testimony objection finds no support. Plaintiff may not completely disregard any response on claims put at issue. Plaintiff must provide information as to the foundation of the claim and distinguish information actually within the realm of experts. (See Bloxham v. Saldinger (2014) 228 Cal.App.4th 729, 751-752.)

Any privilege objections to the subject item may be addressed in the privilege log. The court finds insufficient argument in the motion otherwise compelling a response if the material is privileged.

The information sought is relevant. But ‘[f]or discovery purposes, information is relevant if it “might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement….” [Citation.] Admissibility is not the test and information, unless privileged, is discoverable if it might reasonably lead to admissible evidence. [Citation.] These rules are applied liberally in favor of discovery [citation], and (contrary to popular belief), fishing expeditions are permissible in some cases. [Citation.]’ (Citations.)” (Cruz v. Superior Court (2004) 121 Cal.App.4th 646, 653–654.) Plaintiff may not selectively withhold information on issues presented in the complaint.

“Privacy interests generally fall into one of two categories: (1) an interest in making intimate personal decisions or conducting personal activities without observation, intrusion, or interference (‘autonomy privacy’); and (2) an interest in precluding the dissemination or misuse of sensitive and confidential information (‘informational privacy’).” (Ortiz v. Los Angeles Police Relief Assn. (2002) 98 Cal.App.4th 1288, 1301.) “[I]ndividuals have a legally recognized privacy interest in their personal financial information.” (International Federation of Professional & Technical Engineers, Local 21, AFL-CIO v. Sup. Ct. (2007) 42 Cal.4th 319, 330.) The objecting party has the burden to file evidence of the preliminary facts establishing a privilege exists. (Williams v. Superior Court (2017) 3 Cal.5th 531, 557; HLC Properties, Limited v. Sup. Ct. (2005) 35 Cal.4th 54, 59.) Again, t even if considered, the court finds no basis of support, given Plaintiff placed the subject matter at issue in bringing this action, including a claim for damages caused by the impacts of Defendants’ alleged conduct.

The motion is granted in its entirety. Plaintiff to serve additional responses without objection, including a privilege log within 20 days of this order. (Code Civ. Proc., §§ 2030.220, 2030.300, subd. (a), 2031.240, subd. (c), 2031.310, subd. (a).)

Defendant makes no request sanctions. Normally, any motion compelling further responses to document production warrants a minimum $1,000 recovery. (Code Civ. Proc., § 2023.050, subd. (a)(1).) Because Defendant made no request for sanctions, the court need not consider this.

The court does not conduct independent discovery conferences. The court invites the parties to consider a discovery referee if further guidance remains required over concerns requiring review of privacy protected information. Future motions to compel may lead to significant sanctions and referral to a referee.

December 9, 2024, trial date to stand.

Defendant to give notice.