Judge Stephen P. Pfahler, Case Number: 23STCV20097, Date: 2024-08-19 Tentative Ruling

Judge: Stephen P. Pfahler, Case: 23STCV20097, Date: 2024-08-19 Tentative Ruling

Case Number: 23STCV20097 Hearing Date: August 19, 2024 Dept: 68

Dept. 68

Date: 8-19-24 a/f 8-28-24

Case 23STCV20097

Trial Date: 5-19-25

FURTHER PRODUCTION OF DOCUMENTS/PROTECTIVE ORDER

MOVING PARTY: Plaintiff, Chiemel Warderh

RESPONDING PARTY: Defendant, Healthcare Partners Medical Group, P.C.

RELIEF REQUESTED

Motion to Compel Further Responses to Request for Production of Documents (set one)

Motion for Protective Order

SUMMARY OF ACTION

Plaintiffs Bridgette Bauer alleges injuries as a result of the use of a knee cruiser rented from Defendant Valencia Pharmacy, and distributed/sold by Defendant Nova Ortho-Med. The cruiser allegedly failed, when a when a weld came apart, thereby causing Plaintiff to fall. Plaintiff was recovering from a broken foot at the time of fall. The fall exasperated the old injury and caused new injuries.

On August 22, 2023, Plaintiff filed a 21 cause of action for (1) National Origin/Ancestry/Accent Discrimination In Violation Of FEHA (2) Race/Color Discrimination In Violation Of FEHA. (3) Disability Discrimination In Violation Of FEHA. (4) Failure To Accommodate/ Failure Interactive Process In Violation Of FHEA. (5) Retaliation For Opposing Practices Forbidden By FEHA And For Requesting Accommodation In Violation Of FEHA. (6) Hostile Work Environment Rn Violation Of FEHA. (7) Failure To Do Everything Reasonably Necessary To Prevent Discrimination, Harassment, And Retaliation From Occurring In Violation Of FEHA. (8) Failure to Pay Wages in Violation Of Labor Code. (9) Denial Of Breaks In Violation of Labor Code Sections 226.7, 512 and Wage Orders. 10) Failure To Reimburse In Violation Of California Labor Code Section 2802. (11) Improper Wage Statements In Violation Of Labor Code Section 226. (12) Failure To Pay All Wages Owed At Ending Of Employment In Violation Of Labor Code Sections 201, 202, & 203. (13) Retaliation And Interference/Violation Of Kin Care. (14) Violation Of Paid Sick Leave/Retaliation For Taking/Requesting Paid Sick Leave (15) Violation Of Health And Safety Codes 1278.5 and/or 1432. (16) Violation Of Business and Professions Codes Section 510. 17) Wrongful Termination/ Adverse Employment Action In Violation Of Public Policy. (18) Negligent Hiring And Retention. 19) Intentional Infliction Emotional Distress. (20) Retaliation For Whistleblowing Under California Labor Code 1102.5. (21) Violation Of Business and Profession Code Section 17200, et seq. Defendants Optum Services, Inc., Optum, Inc., HealthCare Partners Medical Group, P.C., and UnitedHealth Group Incorporated answered on September 27, 2023. Defendant Stephanie Fanous answered on October 31, 2023.

On February 7, 2024, plaintiff filed a 23 cause of action, 107 paragraph first amended complaint for (1) National Origin/Ancestry/Accent Discrimination In Violation Of FEHA (2) Race/Color Discrimination In Violation Of FEHA. (3) Disability Discrimination In Violation Of FEHA. (4) Failure To Accommodate/ Failure Interactive Process In Violation Of FHEA. (5) Retaliation For Opposing Practices Forbidden By FEHA And For Requesting Accommodation In Violation Of

FEHA. (6) Hostile Work Environment Rn Violation Of FEHA. (7) Failure To Do Everything Reasonably Necessary To Prevent Discrimination, Harassment, And Retaliation From Occurring In Violation Of FEHA. (8) Failure to Pay Wages in Violation Of Labor Code. (9) Denial Of Breaks In Violation of Labor Code Sections 226.7, 512 and Wage Orders. 10) Failure To Reimburse In Violation Of California Labor Code Section 2802. (11) Improper Wage Statements In Violation Of Labor Code Section 226. (12) Failure To Pay All Wages Owed At Ending Of Employment In Violation Of Labor Code Sections 201, 202, & 203. (13) Retaliation And Interference/Violation Of Kin Care. (14) Violation Of Paid Sick Leave/Retaliation For Taking/Requesting Paid Sick Leave (15) Violation Of Health And Safety Codes 1278.5 and/or 1432. (16) Violation Of Business and Professions Codes Section 510. 17) Wrongful Termination/ Adverse Employment Action In Violation Of Public Policy. (18) Negligent Hiring And Retention. 19) Intentional Infliction Emotional Distress. (20) Retaliation For Whistleblowing Under California Labor Code 1102.5. (21) Violation Of Business and Profession Code Section 17200, et seq. (22) Breach Of Contract. (23) Breach Of The Implied Covenant Of Good Faith And Fair Dealing. On February 14, 2024, the court entered the stipulation of the parties for the filing of the first amended complaint.

RULING: Granted in Part/Denied in Part.

Defendant, Healthcare Partners Medical Group, P.C. moves for a protective order requiring no further production on Request for Production of Documents (set two) numbers 13, 22-24, 26-28, 34, 37, 39-42, 48, 64, 81, 85, 98-101, 114, 115, 117-119, 124, 125, 127 129-131, 134, 135, 138-142, 149, 152, and 154. Plaintiff Chiemel Warderh moves to compel Defendant Healthcare Partners Medical Group, P.C. to provide further production of request for production of documents (set two), numbers 1-7, 9, 10, 12-14, 16-28, 30, 34, 37-44, 46-53, 57, 58, 60-69, 72, 73, 75-78, 80-89, 98-103 and 111.

The motion to compel further responses was specially advanced via ex parte in order to be heard concurrently with the protective order. Given the motions address a number of common items, the court consolidates the ruling.

The court generally refers to the operative pleading for contextual support of discovery disputes. The first amended complaint while quite lengthy at 23 causes of action provides minimal contextual facts beyond the Nigerian nationality and ancestry of Plaintiff, alleged discriminatory conduct, and labor code wage and hour violations. Plaintiff challenges the objections and privilege log entries, while Defendant represents producing 414 pages of documents, a chart correlating the pages, a privilege log, and efforts to meet and confer. Defendant stands by its objections.

The court adheres to a robust discovery policy for production of non-privileged discovery, with consideration of privileged material where warranted, in order to allow for as thorough and complete adjudication of the action as possible. Given the sheer volume of the number of items in dispute based on the objections and arguments against production, the court reviews the motion as a function of determining the relevance, scope of requested discovery, and validity of the objections.

The court first notes that Plaintiff only seeks further responses to numbers 1-7, 9, 10, 12-14, 16-28, 30, 34, 37-44, 46-53, 57, 58, 60-69, 72, 73, 75-78, 80-89, 98-103 and 111, while Defendant seeks a protective order for numbers 13, 16-28, 34, 37-42, 44, 46-53, 58, 60, 64, 66-69, 72, 73, 75-78, 80, 81, 84-87, 98- 103, and 111-154. It appears that numbers 30, 112-152, and 154, are

separate and apart from the motion to compel further responses. Given the lack of any pending motion to compel further responses to numbers 30, 112-152, and 154, the court first addresses the motion to compel furthers and overlapping protective order on the operative items.

Defendant offers certain groups of responses based on numbers of items, including medical privacy, attorney client privilege and overbroad. The court finds no support for the medical privacy objections, and limited support for the overbroad objections. The court reviews the identified items from the opposition—numbers 13, 22-24, 26-28, 34, 37, 39-42, 48, 64, 81, 85, and 98-101.

The court agrees that certain categories are substantially overbroad like Number 13: All DOCUMENTS signed by PLAINTIFF; number 37: All ELECTRONIC MAIL sent between MANAGEMENT and PLAINTIFF; number 40: All DOCUMENTS that refer to, pertain to, relate to, and/or reference PLAINTIFF in any way. The court also finds number 85: Please produce all videos, audio recordings, EMAILS and/or text messages which relate to PLAINTIFF and/or PLAINTIFF's allegations of INAPPROPRIATE CONDUCT and/or MISTREATMENT ovebroad, though not part of this identified list. (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.)

“Although appellate courts have frequently stated ‘fishing expeditions’ are permissible in discovery, there is a limit. ... In Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355 [], the seminal case in California civil discovery, the court gave examples of improper ‘fishing’ which clearly apply here: ‘The method of “fishing” may be, in a particular case, entirely improper (i.e., insufficient identification of the requested information to acquaint the other party with the nature of information desired, attempt to place the burden and cost of supplying information equally available to both solely upon the adversary, placing more burden upon the adversary than the value of the information warrants, etc.). Such improper methods of 'fishing' may be (and should be) controlled by the trial court under the powers granted to it by the statute.” (Id. at pp. 384-385.) The concerns for avoiding undue burdens on the “adversary” in the litigation expressed in Greyhound apply with even more weight to a nonparty.’” (Calcor Space Facility, Inc. v. Superior Court, supra, 53 Cal.App.4th at pp. 224–225.)

The court however finds no support for the overbroad and medical objection on items seeking personnel related information in support of the discrimination and wage and hour claims:

· number 22: All DOCUMENTS pertaining to, relating to, evidencing, referring to, and/or referencing any reasons PLAINTIFF was TERMINATED, ended employment, and/or DISCIPLINED, during PLAINTIFF's employment with DEFENDANT;

· number 23: All DOCUMENTS containing any COMMUNICATIONS by MANAGEMENT that pertain to, relate to, evidence, reference, and/or refer to the TERMINATION, ending of employment and/or DISCIPLINE, of PLAINTIFF;

· number 24: All DOCUMENTS relied on by DEFENDANT to make a decision to TERMINATE, end the employment of PLAINTIFF and/or DISCIPLINE PLAINTIFF;

· number 26: If any INVESTIGATION(s) was conducted by DEFENDANT into any alleged conduct, policy violations, activities, and/or actions of the PLAINTIFF, please provide all DOCUMENTS pertaining to, relating to, evidencing, referring to, and/or referencing the INVESTIGATION(s);

· number 27: If PLAINTIFF was interviewed and/or provided a statement as part of any INVESTIGATION(s) conducted by DEFENDANT, please provide all DOCUMENTS

pertaining to, relating to, evidencing, referring to, and/or referencing the INVESTIGATION(s);

· number 28: If DEFENDANT based its TERMINATION, ending of PLAINTIFF'S employment and/or any DISCIPLINE, of the PLAINTIFF on any information obtained during any INVESTIGATION(s), please provide all DOCUMENTS pertaining to, relating to, referring to, evidencing, and/or referencing the INVESTIGATION(s);

· number 34: All DOCUMENTS which support, pertain to, relate to, and/or evidence any of DEFENDANT’s Affirmative Defenses against any of PLAINTIFF’s causes of action contained in PLAINTIFF’s complaint for damages in this case including all Affirmative Defenses asserted in DEFENDANT’s ANSWER and/or otherwise asserted in this case;

· number 41: All DOCUMENTS that refer to, pertain to, relate to, and/or reference the ending of PLAINTIFF's employment with DEFENDANT in any way including any exit interview DOCUMENTS and/or any other DOCUMENTS;

· number 42: Any and all DOCUMENTS, whether or not included in PLAINTIFF's personnel file, which in any way pertain to any of PLAINTIFF's complaints, grievances, and/or allegations in this case, any DISCIPLINE given to PLAINTIFF, PLAINTIFF's work performance while employed by DEFENDANT, PLAINTIFF'S ending of employment with DEFENDANT and/or PLAINTIFF's TERMINATION; number 48: All DOCUMENTS referring to, pertaining to, evidencing, and/or referencing any COMMUNICATIONS about, referring to, and/or referencing PLAINTIFF's TERMINATION;

· number 64: Please produce all DOCUMENTS relating to, referring to, evidencing, pertaining to and/or 27 referencing the dates and/or times that PLAINTIFF worked for DEFENDANT, the dates and/or times that PLAINTIFF missed any work, and/or was absent from work, while employed by DEFENDANT; number 84: Please produce all training provided to Stephanie Fanous, PLAINTIFF, and all of DEFENDANT's nurse practitioners in Southern California regarding discrimination, harassment, retaliation, FEHA, and Title VII during the time period January 1, 2015 - September 1, 2023.

· number 85: Please produce all videos, audio recordings, EMAILS and/or text messages which relate to PLAINTIFF and/or PLAINTIFF's allegations of INAPPROPRIATE CONDUCT and/or MISTREATMENT;

· number 98: All DOCUMENTS pertaining to, relating to, evidencing, referring to, and/or referencing the daily assignments and messages showing when PATIENTS were missed and/or not contacted for their scheduled appointments by all of DEFENDANT's nurse practitioners supervised by Stephanie Fanous during PLAINTIFF's employment with DEFENDANT;

· number 99: All DOCUMENTS pertaining to, relating to, evidencing, referring to, and/or referencing PLAINTIFF's PATIENT load and PATIENT schedule during his employment with DEFENDANT, redacted of any protected health information;

· number 100: All DOCUMENTS pertaining to, relating to, evidencing, referring to, and/or referencing the PATIENT load and PATIENT schedule all of DEFENDANT's nurse practitioners supervised by Stephanie Fanous during PLAINTIFF's employment with DEFENDANT, other than PLAINTIFF, redacted of any protected health information; and

· number 101: All DOCUMENTS pertaining to, relating to, evidencing, referring to, and/or referencing any and all complaints by DEFENDANT's PATIENTS made against PLAINTIFF.

As for number 39, while the request seeks medical records, the request is for Plaintiff’s own records. On the patient complaint requests, the opposition fails to establish a patient complaint in any way constitutes medical information, as opposed to a human resources file, and why redaction would somehow still render production improper. (See Eisenhower Medical Center v. Superior Court (2014) 226 Cal.App.4th 430, 435-437; see also Y.C. v. Superior Court (2021) 72 Cal.App.5th 241, 257.)

Numbers 81-83 are identified in the motion, but do not appear in the separate statement. The court will not address them otherwise.

A review of the remaining items lacks any support for a finding of medical records as well, including numbers 1-7, 9, 10, 12, 14, 16-21, 25, 30, 38, 43, 44, 46-53, 57, 58, 60-63, 65-69, 72, 73, 75-78, and 80-89. The court finds no support for the objections on medical information anywhere supported.

The court however finds the attorney client and work product objections valid, without performing an individual examination of each and every item. 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 maintains 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 declines to overrule the privilege log entries based on the arguments in the motion. [Ex. 27.] The court however disagrees with a blanket objection seeking to prevent potential production of non-privileged work. It remains unclear from the entries whether every and all identified item constitutes all responsive items.

Number 73 presents an issue regarding the production of information of potentially former employees or current employees’ personal information other than offering their identification. “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.)

Notwithstanding the attorney client objections, overbroad items, and potential issue with number 73, the subject items specifically seek relevant, non-privileged information related to the employment and wage and hour claims. “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.)

The motion to compel further responses is therefore GRANTED in part, as follows: The court order further production of non-privileged items as to all but numbers 13, 37, 40, and 85. The motion to compel further responses is DENIED without prejudice as to numbers 13, 37, 40, 81, and 85. The parties may meet and confer on numbers 13, 37, 40, and 85, but the court otherwise declines to order production on the items as phrased. On number 73, the parties are ordered to determine the identity of the employees and the requirements for identification of current or former employees. The motion to compel further responses is DENIED as to numbers 81-83, again in that the subject items appear omitted from the separate statement even though listed in the notice of motion (see separate statement pages 185-187). ANY items NOT specifically identified by number are also included in the motion to GRANT.

The motion for protective order on all items overlapping with the motion to compel further responses, on all but 13, 37, 40, and 85, is DENIED. The court grants the motion for protective order on 13, 37, 40, and 85, subject to potential meet and confer efforts, but again, the court in no way compels production based on the phrasing of said items.

As to the remainder of items in the protective order, numbers 30, 112-152, and 154, the court finds no address of numbers 30 and 154 in the separate statement in support (see separate statement pages 47-56, 268-272). The court declines to assume or verify the potentially mislabeled entries constitute as the correct items.

Regardless, while the concurrent motion to compel further responses was filed nine (9) days before the subject motion for protective order, the court finds any deadline to compel further responses not addressed in the motion to compel further responses lapsed. The court therefore finds no threat of “unwanted annoyance, embarrassment or oppression or undue burden and expense” or basis of good cause for further considering the protective order on the remaining items. (Code Civ. Proc., § 2031.060, subd. (b); Fairmont Insurance Co. v. Superior Court (2000) 22 Cal.4th 245, 255.) The motion for protective order is therefore DENIED as to numbers 30, 112-152, and 154.

The minimum amount of sanctions for a motion to compel production of documents increased to $1,000 per motion. (Code Civ. Proc., § 2023.050, subd. (a)(1).) Sanctions in the amount of $1,000 joint and severally imposed against both Defendant and counsel and payable within 30 days of this order. (Code Civ. Proc., §§ 2023.050, subd. (a)(1), 2031.300, subd. (c).) The court

awards an additional $250 in sanctions in favor of Plaintiff and against both Defendant and counsel of record for the protective order. (Code Civ. Proc., § 2031.060, subd. (h).) Total sanctions of $1,250.

This court does not conduct independent discovery conferences. The subject motions involved separate statements combing to over 550 pages for review to the court. The next set of motions are listed as follows: motion for protective order on Special Interrogatories, numbers 3, 12, 22-25, 29, 32 and 57-68, motion to compel further responses to Special Interrogatories, numbers 3, 12, 22-25, 29, 32, motion to compel further responses to Form Interrogatories – Employment, numbers 201.6, 207.1, 209.2, 211.1, 215.1, 215.2, 216.1 & 217.1, all set for September 30, 2024; motion for protective order on October 14, 2024; and motion to compel deposition for October 28, 2024. The subject voluminous disputes may lead to the setting of an OSC re: Discovery Referral at the time of the September 30, 2024, hearing. The court may accelerate any potential OSC if the parties again return for any ex parte relief before the September 30, 2024, hearing related to discovery. The parties may consider a stipulation for the appointment of a discovery referee on their own accord.

Moving parties to give notice.