Judge: Teresa A. Beaudet, Case: 19STCV31443, Date: 2022-08-23 Tentative Ruling

Case Number: 19STCV31443    Hearing Date: August 23, 2022    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

            Background

Plaintiff Kristine West (“Plaintiff”) filed this employment action on September 4, 2019 against Defendants Greyhound Lines, Inc. (“Greyhound”) and Jorge Ochoa (“Ochoa”) (jointly, “Defendants”).

On June 18, 2021, Plaintiff served on Greyhound her Second Set of Requests for

Production of Documents (“RFP”). (Rushovich Decl., ¶ 3, Ex. A.) On August 3, 2021, Greyhound served responses to Plaintiff’s Second Set of RFPs. (Rushovich Decl., ¶ 4, Ex. B.) In response to RFP Nos. 9-15, Greyhound served only objections but indicated that it was willing to meet and confer with regard to ESI. (Rushovich Decl., ¶ 4, Ex. B.) Counsel for Plaintiff met and conferred with counsel for Greyhound concerning the perceived deficiencies in certain of the responses, including RFP Nos. 9-15. (Rushovich Decl., ¶¶ 5-24.)

            On March 8, 2022, the parties participated in an Informal Discovery Conference (“IDC”). The Court’s March 8, 2022 minute order provides, inter alia, that “[t]he parties…agreed and the Court ordered as follows…On or before 3/15/22, counsel for Greyhound will inform counsel for Plaintiff via email or telephone, the amount of time needed to produce the results of a search responsive to Requests for Production Nos. 9-15, as herein limited. The search will include Plaintiff, Ms. Kristine Arnwine, Mr. Jorge Ochoa, Ms. Cathy Gerdes, Mr. Robert Garduno and Mr. Al Rodriguez. The search will initially include the terms identified in Plaintiff’s IDC request, page two, except ‘race,’ ‘black’ and ‘African American.’ Greyhound anticipates that the production will require approximately 30 days to complete. The parties agree to meet and confer after the initial production to determine if a further search on those three excluded terms will be necessary. The parties retain their rights to seek or preclude that additional search.”

On March 15, 2022, counsel for Greyhound emailed counsel for Plaintiff regarding the amount of time needed to produce results of a search responsive to RFP Nos. 9-15, based on the specific limits set forth in the March 8, 2022 Order. (Rushovich Decl., ¶ 27.) In the email, counsel for Greyhound stated that, “within reason, defendants should be able to produce the subject ESI by April 29, perhaps sooner.” (Rushovich Decl., ¶ 27, Ex. W.) Counsel for Greyhound also attached a table showing the number of documents resulting from its ESI search that contained each of the key search terms, and documents with hits included those containing one or more of the derogatory terms. (Ibid.)

On March 17, 2022, the parties participated in another IDC. The Court’s March 17, 2022 minute order provides, inter alia, that “[t]he parties participated in the continued informal discovery conference (“IDC”). They agreed and the Court ordered as follows…By 4/29/22, Defendant will serve via email a supplemental response to request for production nos. 9-15 (“RFPs 9-15”) that (1) indicates that an ESI search was done for (a) “Kristine West,” (b) “Mauritta Wallis” or “Mauritta Wallace,” and (c) all the terms identified in Plaintiff’s IDC statement dated 3/3/22[1] regarding RFPs 9-15 except “West,” “Kristine,” “race,” “racial,” “black,” “African American,’ and “angry” in the electronic communications by Ms. Arnwine, Mr. Ochoa, Ms. Gerdes, Mr. Gardino and Mr. Rodriguez, and (2) the results thereof without attachments will be produced concurrently, except privileged communications identified on a privilege log. Plaintiff’s right to request further production of relevant attachments to those communications is preserved.” (Emphasis added.) 

Plaintiff indicates that Greyhound did not produce any documents or a privilege log by April 29, 2022. (Rushovich Decl., ¶ 29.) Plaintiff indicates that on May 20, 2022, after Plaintiff’s deadline to oppose Greyhound’s motion for summary adjudication (“MSA”), Greyhound produced a supplemental production consisting of 567 pages, with no privilege log. (Rushovich Decl., ¶ 31.) Plaintiff asserts that there were no documents produced that contained nearly any of the search terms. (Rushovich Decl., ¶ 31.)

Plaintiff indicates that the deadline to file her opposition to Greyhound’s MSA was May 3, 2022. (Rushovich Decl., ¶ 34.) Plaintiff asserts that because Greyhound did not timely produce its document production, Plaintiff was unable to incorporate any of the documents (that were belatedly produced) or information contained therein into Plaintiff’s opposition. (Rushovich Decl., ¶ 35.) Plaintiff states that certain documentary evidence produced is relevant to the MSA. (Ibid.)

Plaintiff now moves for an order compelling Greyhound to produce all documents responsive to Plaintiff’s RFP Nos. 9 to 15. Plaintiff also moves for an order imposing monetary sanctions against Greyhound. In addition, Plaintiff moves for an order permitting Plaintiff to file a supplemental opposition in response to Greyhound’s pending MSA. Lastly, Plaintiff moves for an order permitting her to conduct further discovery limited to the documents that Greyhound failed to produce on a timely basis. Greyhound opposes. 

In addition, Greyhound moves for summary adjudication of the first, third, fifth, sixth, seventh, eighth, and ninth causes of action of the Complaint. Plaintiff opposes.[2]

Discussion

As a threshold matter, Plaintiff moves “for an order to compel [Greyhound] to produce immediately all documents responsive to Plaintiff’s Document Request Nos. 9 to 15 based on the Court ordered search terms, as previously ordered by this Court in its March 17, 2022 Minute Order.” (Notice of Motion at 1:4-7.) The Court notes that it does not issue orders to comply with its orders, so no further order is necessary or appropriate to compel compliance with regard to  RFP Nos. 9 to 15.

Plaintiff also notes that pursuant to Code of Civil Procedure section 128, subdivision (a), “[e]very court shall have the power…[t]o compel obedience to its judgments, orders, and process…” as well as “[t]o amend and control its process and orders so as to make them conform to law and justice.” Plaintiff requests that the Court “compel obedience with its orders” and “amend and control its process and orders” by granting Plaintiff leave to (a) file a supplemental opposition to Greyhound’s MSA based on the additional documents already produced and to be produced in response to the written discovery at issue in the instant motion, and (b) have the right to conduct further deposition examination of the documents’ custodians (Kirstyn Arnwine, Jorge Ochoa, Cathy Gerdes, Robert Garduno, and Al Rodriguez) reasonably related to the matters set forth in such documents.

As discussed, Plaintiff indicates that on May 20, 2022, after the deadline set by the Court’s March 17, 2022 minute order, Greyhound produced a supplemental production. (Rushovich Decl., ¶ 31.) Greyhound acknowledges that it produced documents on May 20, 2022. (Staggs Decl., ¶ 14), and indicates that its attorneys were plagued with health issues, which resulted in a slight production delay. (Opp’n at p. 12:3-4.) Plaintiff indicates that because Greyhound did not timely produce its document production, Plaintiff was unable to incorporate any of the documents or information contained therein into Plaintiff’s opposition. (Rushovich Decl., ¶ 35.) Plaintiff indicates that documents that have been produced by Greyhound include documentary evidence supporting that Plaintiff applied for a Driver Supervisor position. (Ibid.) Plaintiff asserts that this matters because Greyhound asserted in its reply brief in connection with its MSA that Plaintiff has proffered no evidence that she so applied and also claimed it had no record of her applying. (Ibid.) Plaintiff also indicates that there is documentary evidence indicating involvement of Ochoa in Greyhound’s decisions regarding Plaintiff’s disability, EEOC complaint, and termination that are also relevant to the MSA and likely would have been used in Plaintiff’s opposition. (Ibid.)

Greyhound asserts that “Plaintiff has not demonstrated or illustrated how any of the alleged documents or records would provide any substantial justification in revisiting the MSA.” (Opp’n at p. 19:16-18.) But as set forth above, Plaintiff does discuss why she asserts the documents are relevant to her opposition to the MSA. Greyhound also asserts that allowing Plaintiff to file a supplemental opposition would cause Greyhound to incur additional costs and require Greyhound to spend further hours replying to the opposition. But as Plaintiff asserts, Greyhound’s belated production necessitated Plaintiff’s need for supplemental briefing. The Court thus finds that Plaintiff has demonstrated good cause to file a supplemental opposition in response to Greyhound’s pending MSA.

Plaintiff also requests leave to conduct “limited further deposition testimony” of five specified custodians. As Greyhound notes, on January 14, 2022, Greyhound filed an ex parte application to continue trial, which Plaintiff did not oppose. (Staggs Decl. ¶ 4.) The Court’s January 14, 2022 minute order provides in pertinent part, “[d]iscovery cut-off for non-experts and experts is not continued except for the completion of the discovery identified in paragraph 4 of the Thompson Declaration.” Paragraph 4 of Charles L. Thompson’s Declaration in support of Greyhound’s ex parte application to continue trial provides, “Ogletree and Plaintiff have been working with each other to complete outstanding discovery. For Plaintiff, the discovery consists of a second day of deposition of a former Greyhound employee and an inspection of the Greyhound terminal. For the Defendant, the remaining discovery consists of the Independent Medical Examination of Plaintiff. Both parties must complete discovery of the experts each disclosed.” (Staggs Decl. ¶ 5, Ex. D.)

Plaintiff acknowledges in the reply that the January 14, 2022 minute order closes discovery except with respect to certain items. Plaintiff thus seeks to reopen discovery. However, Plaintiff’s motion does not discuss the application of Code of Civil Procedure section 2024.050 here, which concerns the reopening of discovery. The Court does not find that Plaintiff has demonstrated grounds for an order compelling further deposition testimony of the five specified custodians.

Lastly, Plaintiff seeks monetary sanctions against Greyhound. Pursuant to Code of Civil Procedure section 2023.030, subdivision (a), “[t]he 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…If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction 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.”

As discussed, Plaintiff indicates that on May 20, 2022, after the deadline set by the Court’s March 17, 2022 minute order, Greyhound provided a supplemental production. (Rushovich Decl., ¶ 31.) Greyhound asserts that “though Greyhound timely supplemented its response to RFP 9-15, Greyhound’s handling attorneys were plagued with health issues, which resulted in a slight production delay.” (Opp’n at p. 12:3-4; see Staggs Decl., ¶ 22.) Greyhound also asserts that to date, it has produced the information requested in Plaintiff’s discovery. (Staggs Decl., ¶ 22.) In light of the evidence provided by Greyhound as to its counsel’s health issues, as well as the fact that Greyhound asserts it has produced the information requested, the Court finds that the circumstances make the imposition of sanctions unjust.

Greyhound also asserts that pursuant to Code of Civil Procedure Section 2030.300, subdivision (d)[3], the Court should impose monetary sanctions in the amount $5,930.00 against Plaintiff and her counsel for the cost and expense Greyhound incurred as a result of Plaintiff’s motion. The Court does not find that sanctions are warranted against Plaintiff. As discussed, Greyhound did not timely produce documents in accordance with the Court’s March 17, 2022 minute order, and the Court finds that Plaintiff demonstrated good cause to file a supplemental opposition to Greyhound’s MSA.   

Conclusion

Based on the foregoing, Plaintiff’s motion is granted in part and denied in part. Plaintiff’s motion to compel documents is denied as moot. Plaintiff’s request for monetary sanctions is denied. Plaintiff’s request for leave to conduct further depositions is denied. 

Plaintiff’s request for leave to file a supplemental opposition in response to Greyhound’s pending MSA is granted. Plaintiff may file a supplemental opposition in response to Greyhound’s pending MSA on or before ____________, 2022. Greyhound may file a supplemental reply in response thereto on or before ____________, 2022. No new evidence or new argument is to be submitted in connection with any supplemental opposition and supplemental reply unless it concerns Greyhound’s May 20, 2022 supplemental production and/or any further supplemental production subsequent to May 20, 2022 by Greyhound in response to RFP Nos. 9-15. 

In light of the foregoing, the hearing on Greyhound’s MSA is continued to ____________, 2022 at 2:00 p.m. 

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Plaintiff is ordered to give notice of this Order.

DATED:  August 23, 2022                             ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court