Judge: Theodore R. Howard, Case: 21-1228581, Date: 2023-07-27 Tentative Ruling

Further Responses to RFA’s

Plaintiff’s Motion for an Order requiring Defendant to serve further responses to requests for admission Nos. 1 - 12 and their corresponding form interrogatories, and for monetary sanctions of $3,960 against Defendant.

Plaintiff seeks Defendant’s supplemental responses to each of the RFA.  The RFA seek Defendant’s admissions regarding other former employees over the age of 50 that left Defendant’s employment, and which employees under the age of 40 were hired into the same position at a lower salary.  These are similar to the allegation in the complaint that Plaintiff was terminated and a younger person was hired into Plaintiff’s position at a lower salary.

 Defendant’s response to RFA Nos. 1 – 12 where identical:

“RESPONDING PARTY incorporates by reference herein its preliminary statement and general objections and conditions.  [RESPONDING PARTY objects to this request on the grounds that the request violates Code of Civil Procedure Section 2033.060(d). – for RFA Nos. 2 – 4, 6 – 8, and 10 – 12.]  RESPONDING PARTY further objects to this request on the grounds that it is compound and requires RESPONDING PARTY to adopt an assumption or assumptions made by PROPOUNDING PARTY. RESPONDING PARTY also objects to this request on the grounds that the term “separated” as used in this request is vague, ambiguous, and unintelligible. RESPONDING PARTY also objects to this request on the grounds that phrase “separated from her employment” as used in this request is vague, ambiguous, and unintelligible. Specifically, PROPOUNDING PARTY fails to identify what “employment” it is referring to. RESPONDING PARTY further objects to this request on the grounds that it seeks information that is neither relevant nor reasonably calculated to lead to the discovery of admissible evidence. RESPONDING PARTY also objects to this request on the grounds that it violates RESPONDING PARTY and third parties’ right to privacy.

Subject to and without waiving the foregoing objections, RESPONDING PARTY responds to this request as follows:

Following a reasonable inquiry regarding the subject matter of this request as drafted RESPONDING PARTY lacks information and knowledge sufficient to enable RESPONDING PARTY to admit or deny this request and, on that basis, denies this request.”

As to Defendant’s objections, these RFA are not compound, nor are they vague, ambiguous, and unintelligible as to the terms “separated,” “separated from her/his employment,” or “employment.”  The requested information is relevant to so Defendant’s potential ongoing actions toward terminating holder employees and then hiring younger employees for less money.  The requests also do not violate Defendant’s right to privacy.   The requests themselves do not appear to violate a third party’s right to privacy as no personally identifying information is sought from them, however, the related responses to FROG do ask for identification of individuals with knowledge of facts, information, and documents related to the RFA.  The potential for personally identifying information being divulged in the FROG would not support denying the RFA wherein no personally identifying information is provided or requested.  The objections do not support denying the Motion.

The responses also state that Defendant has conducted a reasonable inquiry into the subject matter of each request and denies the requests due to lack of information and sufficient knowledge to admit to them.  This response is code compliant under Civ. Proc. Code § 2033.220(c). 

The Court is troubled, however, by the following statement in Defendant’s Opposition:

“Plaintiff’s proposed solution, forcing Defendant to search all of its employment records in a given year to determine whether any individual meets Plaintiff’s vague criteria, only underscores the vague nature of these requests.”  (Opposition, 2:18-20.)

The statement in the opposition suggests Defendant did not perform a search of its records to determine if there were any terminations that matched the three identified.  A “reasonable investigation” would require a party to look through its records, including employment records, for information responsive to the requests.  It Defendant did not look through its records, then the responses would not be code compliant as a “reasonable investigation” did not actually occur.  The Court will hear further on this matter at the hearing.

Motion for Further Responses to Frogs

If the Court is satisfied that the Responses to the RFA’s was code-compliant, this Motion would be denied.  If not, the Court would issue the following:

Pursuant to Civ. Proc. Code § 2033.290, Defendant is hereby ordered to perform a reasonable investigation, which includes but is not limited to reviewing its employment and human resources records for responsive information, and to provide supplemental responses to RFA Nos. 1 – 12 within 30-days of written notice of the court’s ruling. 

Regarding the related FROG, Defendant is also ordered to provide supplemental responses to those as well.  (Civ. Proc. Code § 2030.300.)  However, at this time, Defendant is permitted to withhold personally identifying information as to non-party individuals due to non-party privacy concerns.  (Bd. of Registered Nursing v. Superior Ct. of Orange Cnty. (2021) 59 Cal. App. 5th 1011, 1039.)  This does not include withholding the names and contact information of employees within the Defendant’s organization that have information relevant to the issues in this case such as a person most knowledgeable regarding human resources, hiring/termination, etc.

As the Motion was granted, Plaintiff’s request for monetary sanctions is also granted, however the amount requested is on the high side.  (Civ. Proc. Code §§ 2023.010, 2023.030, 2030.300(d), and 2033.290(d).)  The court reduces the requested amount of attorney fees by 80%.  The total awarded monetary sanctions in favor of Plaintiff and against Defendant is $3,228.