Judge: Theresa M. Traber, Case: 20STCV36059, Date: 2023-08-30 Tentative Ruling

Case Number: 20STCV36059    Hearing Date: September 11, 2023    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     September 11, 2023,              TRIAL DATE: October 24, 2023

CASE:                         Anita Young v. The Kroger Co. et al.

CASE NO.:                 20STCV36059           

MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR PRODUCTION (SET THREE)

MOVING PARTY:               Plaintiff Anita Young

RESPONDING PARTY(S): Defendant The Kroger Co.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

            This is an employment law action for sexual harassment and retaliation that was filed on September 21, 2020. Plaintiff alleges that she was sexually harassed by her supervisor, and that her employers refused to investigate or take action, permitting the supervisor to retaliate against her for her complaints.

Plaintiff moves to compel further responses to requests for production propounded to Defendant The Kroger Co.

TENTATIVE RULING:

            Plaintiff’s Motion to Compel Further Responses from Defendant The Kroger Co. is GRANTED.

            Defendant is to provide verified, code-compliant responses without objections to Plaintiff’s Requests Nos. 136 through 143 within 30 days of this order.

DISCUSSION:

            Plaintiff moves to compel further responses to Requests for Production Nos. 136 through 143 propounded to Defendant The Kroger Co.

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Legal Standard

Under Code of Civil Procedure section 2031.310, subdivision (a), a court may order a party to serve a further response to a demand for inspection when the court finds that: “(1) A statement of compliance with the demand is incomplete[;] (2) A representation of inability to comply is inadequate, incomplete, or evasive[; or] (3) An objection in the response is without merit or too general.”

The burden is on the moving party to “set forth specific facts showing good cause justifying the discovery sought by the demand.” (Code Civ. Proc., § 2031.310, subd. (b)(1).) These facts must also be set forth in a separate statement filed by the moving party. (Cal. Rules of Court Rule 3.1345(c).) This burden “is met simply by a fact-specific showing of relevance.” (TBG Ins. Servs. Corp. v. Superior Court (2002) 96 Cal.App.4th 443, 448.)

Timeliness

A motion to compel further responses to requests for production must be served “within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the propounding party and the responding party have agreed in writing.” (Code Civ. Proc. § 2031.310(c).) The 45-day requirement is mandatory and jurisdictional. (Sexton v. Superior Court¿(1997) 58 Cal.App.4th 1403, 1410.)

            Plaintiff propounded the discovery at issue in this motion on December 14, 2022. (Declaration of Viridiana Aceves ISO Mot. ¶ 3.) Defendant provided initial responses on January 17, 2023, followed by supplemental responses on March 29, 2023. (Id. ¶¶ 3-4.) The parties agreed in writing that Plaintiff’s deadline to compel further responses to these requests would be extended to July 14, 2023, the date this motion was filed. (Aceves Decl. ¶ 7, Exh. 5.) This motion is therefore timely.

Meet and Confer

A party making a motion to compel further responses must also include a declaration stating facts showing a “reasonable and good faith attempt” to resolve informally the issues presented by the motion before filing the motion. (Code Civ. Proc., §§ 2016.040, 2031.310, subd. (b)(2).)

            The Declaration of Viridiana Aceves filed in support of this motion states that the parties met and conferred via letter on April 12, 2023, and that Defendant agreed to provide further supplemental responses to certain requests for production, but not those at issue in this motion. (Aceves Decl. ¶ 6.) The Court therefore finds that Plaintiff has satisfied the statutory meet and confer process.

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Defective Separate Statement

            Plaintiff’s Memorandum of Points and Authorities, Declaration of Meet and Confer Efforts, and accompanying exhibits all state that the only requests at issue in this motion are Nos. 136 through 143. (Motion p.3:22-23; Aceves Decl. ¶ 6, Exhs. 3-4.) However, Plaintiff’s Separate Statement in support of this Motion addresses the entirety of Requests for Production Set Three propounded to this Defendant, ranging from Nos. 135 through 167, inclusive. As the remaining requests other than Nos 136 through 143 are not discussed in the motion itself, nor does it appear that the parties met and conferred regarding the remaining requests, the Court will limit its ruling only to those requests actually identified as being at issue in the motion itself.

Good Cause

            Plaintiff moves to compel further responses to Requests for Production Nos. 136 through 143 propounded to Defendant The Kroger Co. Plaintiff makes no effort to demonstrate good cause for any of these requests beyond a boilerplate assertion that “they are intended to shed light on the identity of Plaintiff’s employer, the basis for [Defendant’s affirmative] defenses, and Plaintiff’s [. . .] causes of action.” (Motion p. 6:14-16.) Request No. 136 seeks all documents that identify by name, address and cell phone number the person who replaced Plaintiff. (Separate Statement p. 3:26-28.) Requests Nos. 137 through 143 seek all documents evidencing the positions that the Responding Party claims that Plaintiff was qualified to perform for each year between 2015 and 2021, inclusive. (See, e.g., Separate Statement p. 4:11-13.)

With respect to Request No. 136, it is not apparent the relationship between this request and the allegations as pled from the Complaint itself, nor from the Separate Statement or Plaintiff’s meet and confer correspondence. Plaintiff has therefore failed to demonstrate good cause for this request.

As to Requests Nos. 137 through 143, the Court construes these requests as pertaining to Plaintiff’s contention that Defendants did nothing to accommodate her medical condition. (Complaint ¶ 164.) Permitting Plaintiff to transfer to a different position could have been a potential reasonable accommodation, so Defendant’s position as to her ability to perform those alternative functions or to perform her listed duties is relevant to this action. Further, Plaintiff has alleged that she has worked for Defendant since, at least, 2008, when Defendant Henry became her supervisor. (See Complaint ¶ 11.) Thus, Defendant’s position regarding Plaintiff’s qualifications to hold alternate positions during her employment is relevant to this matter. Applying this construction, the Court finds that there is good cause for these requests.

Defendant’s Responses

            In response to Requests Nos. 137 through 143, Defendant asserted the same series of objections, claiming, inter alia, that the requests are vague and ambiguous, overbroad as to time and scope, seeks documents that are privileged, confidential, and private under both the federal and California Constitutions, and duplicative of other requests. In opposition, Defendant justifies these objections by claiming that the temporal scope and the lack of criteria for the language “positions [Respondent] claim[s] that plaintiff was qualified to perform” renders the request overly broad. The Court does not agree. Each of the requests is limited to a one-year period, and as framed herein, and the meaning of the request appears plain: employment positions during the period at issue which Defendant contends Plaintiff had the requisite qualifications to perform. The Court therefore does not find that Defendant has adequately justified its objections to these requests.

CONCLUSION:

            Accordingly, Plaintiff’s Motion to Compel Further Responses from Defendant The Kroger Co. is GRANTED.

            Defendant is to provide verified, code-compliant responses without objections to Plaintiff’s Requests Nos. 136 through 143 within 30 days of this order.

            Moving Party to give notice.

IT IS SO ORDERED.

Dated: September 11, 2023                ___________________________________

                                                                                    Theresa M. Traber

                                                                                    Judge of the Superior Court

            Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.