Judge: Theresa M. Traber, Case: 20STCV36225, Date: 2022-08-26 Tentative Ruling

Case Number: 20STCV36225    Hearing Date: August 26, 2022    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     August 26, 2022                     TRIAL DATE: December 1, 2022

CASE:                         Jessica Magee v. Cast Parts, Inc. et al.

CASE NO.:                 20STCV36225           

(1) MOTION TO COMPEL FURTHER RESPONSES TO REQUEST FOR INSPECTION

(2) MOTION TO PERMIT DISCOVERY OF DEFENDANTS’ FINANCIAL INFORMATION UNDER CIVIL CODE SECTION 3925

MOVING PARTY:               (1)(2) Plaintiff Jessica Magee

RESPONDING PARTY(S): (1) Defendant Robert Benson; (2) Defendants Cast Parts, Inc. and Consolidated Precision Products Corp.

CASE HISTORY:

·         09/22/20: Complaint filed.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

            In her September 22, 2020 Complaint, Plaintiff alleges that Defendants retaliated against her for reporting alleged discrimination and harassment of her based on race. She also alleges discrimination, harassment, Labor Code claims, and wrongful termination in violation of public policy.

Plaintiff moves to compel further responses to a request for inspection of Defendant Robert Benson’s cell phone. Plaintiff also moves for an order permitting pre-trial discovery of Defendants Cast Parts, Inc. and Consolidated Precision Products Corporations’ financial information pursuant to Civil Code section 3925.

TENTATIVE RULING:

Plaintiff’s Motion to Compel Further Response to Request for Inspection is DENIED

            Plaintiff’s Request for Sanctions is DENIED.

            Plaintiff’s Request for Order Permitting Discovery of Defendants Cast Parts, Inc. and Consolidated Precisions Products Corporation is GRANTED.

DISCUSSION:

Motion to Compel Further Responses to Request for Inspection

            Plaintiff moves to compel further responses to Plaintiff’s request for inspection of Defendant Benson’s cell phone and the data stored within.

Legal Standards

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 representa-tion 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.)

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 parties met and conferred extensively between June 6, 2022 and June 17, 2022 in an effort to resolve this dispute. Plaintiff has provided true and correct copies of the email correspondence regarding this issue. (See Declaration of Samuel P. Nielson ISO Mot. ¶¶ 3-10; Exhs. 3-7.) Plaintiff has offered sufficient evidence to show that she attempted to informally resolve this dispute before filing this motion.

Timeliness

A motion to compel further responses to interrogatories 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.)

Defendant served his response on June 1, 2022. (Nielson Decl. ¶ 3, Exh. 2.)  The motion to compel further responses was served and filed on July 18, 2022. 45 days after June 1, 2022 is July 16, 2022 a Saturday. Therefore, under Code of Civil Procedure section 12, the last day to file this motion was the following Monday, July 18, 2022, the date this motion was served and filed. This motion is therefore timely.

Good Cause

Plaintiff requested that Defendant permit Plaintiff and her attorneys, expert consultants, and representatives to inspect and copy all data on Defendant’s personal cell phone from September 1, 2019, to the present, specifically by making the phone physically available and the data accessible so as to permit third-party ArcherHall to make a copy of the phone’s stored data. (Nielson Decl. Exh. 1.) ArcherHall would first share any data and documents requested by Plaintiff with Defendant’s counsel before providing it to Plaintiff. (Id.) Defendant refused to comply, raising numerous objections to the request. (Id. Exh. 2.)

Plaintiff offers no explanation for what good cause exists for this request other than a statement, without evidence, that Plaintiff believes spoliation of evidence occurred on Defendant Benson’s phone, based solely on the Court’s conclusion that spoliation of evidence had occurred with respect to another individual Defendant’s cell phone. (See July 8, 2022 Minute Order.). Plaintiff has offered no evidence, either in connection with this motion or with any other motion or filing, that Defendant Benson himself has engaged in any spoliation of evidence. The Court’s July 8, 2022 order concluding that the corporate defendants had engaged in or permitted spoliation of evidence with respect to the phones of other Defendants is not sufficient to establish that spoliation of evidence has occurred here. Plaintiff offers no other evidence or facts showing that good cause exists for this request. The Court therefore finds that Plaintiff has not met her burden to show that good cause exists for this request.

Sanctions

            Plaintiff also requests sanctions against Defendant Benson and his counsel in the amount of $2,410.00 in attorney’s fees and costs.

Code of Civil Procedure section 2023.030 authorizes the Court to impose monetary sanctions on any attorney engaging in the misuse of the discovery process by requiring that attorney to pay the reasonable expenses incurred by anyone as a result of that conduct. Code of Civil Procedure section 2030.300(d) requires the Court to impose sanctions against any party who unsuccessfully makes or opposes a motion to compel further response, 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 Plaintiff is not the prevailing party on this motion, Plaintiff is not entitled to sanctions.

Motion to Permit Discovery of Defendants’ Financial Information

            Plaintiff also moves to permit discovery of Defendants’ financial information before trial pursuant to Civil Code section 3925.

Legal Standard

            Civil Code section 3294 authorizes the recovery of punitive damages outside of a breach of contract claim when it is proven by clear and convincing evidence that the defendant is guilty of oppression, fraud, or malice. (Civ. Code § 3294(a).) An employer may be liable for punitive damages based on the acts of an employee only when the employer has advance knowledge of the unfitness of the employee and employed them either with a conscious disregard of the rights or safety of others, or ratified the wrongful conduct. (Civ. Code § 3294(b).) The advance knowledge and conscious disregard, authorization, ratification, or wrongful act itself must be on the part of an officer, director, or managing agent of the corporation. (Id.) “Malice” means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others. (Civ. Code § 3294(c)(1).) “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights. (Civ. Code § 3294(c)(2).)

            Civil Code section 3295 subdivision (c) authorizes the Court to enter an order permitting the discovery of the profits gained by virtue of a defendant’s wrongful act or the financial condition of the defendant if the Court finds, on the basis of affidavits presented, that the Plaintiff has established a substantial probability of prevailing on the claim pursuant to section 3294. (Civ. Code § 3295 (c).) The Court must weigh the evidence presented by both sides and find that it is very likely that the plaintiff will prevail on the claim for punitive damages to make such an order. (Jabro v. Superior Court (Hill) (2002) 95 Cal.App.4th 754, 758.)

Plaintiff’s Discrimination Claim

To prevail on Plaintiff’s underlying discrimination claim, Plaintiff must show that she (1) is a member of a protected class, (2) was performing competently in the position held; (3) suffered an adverse employment action; and (4) some other circumstance suggests discriminatory motive. (Guz v. Bechtel National (2000), 24 Cal.4th 317, 355.)

Plaintiff has offered substantial evidence that Defendants Calderon and Jimenez actively sought to sabotage her work so that she would be punished and fired. (See e.g., Declaration of Samuel P. Nielson ISO Mot. Exh 1 [Deposition of Maria Alvarez] 31:15-17, 42:6-11; Exh 10 [Deposition of Veronica Udabe vol 2.] 214:1-247:4; Exh 4. [Deposition of Marisol Gallegos vol 2.] 144:19-179:5; Exh. 16 pp. CPP 00198-200, 04120.) Defendant Benson, who ultimately decided to fire Plaintiff, apparently relied on facts provided by Defendants Calderon and Jimenez, who displayed racial animus towards Plaintiff, such as through their use of racial slurs. (See e.g., Id., Nielson Decl. Exh. 2 [Deposition of Robert Benson] 42:2-6; Exh. 13. [Declaration of Arturo Hernandez] ¶ 7; Exh. 14 [Declaration of Ramon Lopez].) Plaintiff was, as a result, demoted, humiliated, and embarrassed, and then terminated. (Nielson Decl. Exh. 10 57:21-24, Exh. 16 pp. CPP 04789-90.)

Defendants do not contest Plaintiff’s arguments in this respect except to say that the question of whether discrimination occurred is a question for the jury and the Court may therefore not rule on this contention on this motion. Defendants cite no statute or case law in support of this proposition. The Court finds this argument to therefore be entirely without merit.

            Based on the foregoing, the Court finds that Plaintiff has shown that it is very likely that she will prevail on her underlying claim for discrimination.

Failure to Prevent Discrimination

            To prevail on a claim of failure to prevent discrimination, Plaintiff must show that Defendants failed to take all reasonable steps to prevent discrimination against Plaintiff. (Gov Code § 12940(k).)

As stated above, Plaintiff has offered substantial evidence that she was discriminated against. Further, Plaintiff has offered substantial evidence that Defendants shut down the investigation into Plaintiff’s complaints. (Nielson Decl. Exh. 2 59:16-60:11; 79:15-20, 82:2-24; Nielson Decl. Exh. 9 [Deposition of Veronica Udabe vol. 1.] 58:14-20, 64:2-15.)

Defendants again assert no argument in opposition to this contention except that the question of whether discrimination occurred is a question for the jury and the Court may therefore not rule on this contention on this motion. Defendants cite no statute or case law in support of this proposition.  Again the Court finds this argument to be without merit.

Based on the foregoing, the Court finds that Plaintiff has shown that it is very likely that she will prevail on her underlying claim for failure to prevent discrimination.

Retaliation

To prevail on a claim for retaliation, a plaintiff must show that (1) he or she engaged in a 'protected activity,' (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer's action. (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4^th 1028, 1042.)

Plaintiff has offered substantial evidence that she complained about discrimination by Defendants Calderon and Jimenez. (Nielson Decl. Exh. 9 Udabe Depo 57:21-24; Exh. 16 pp.  CPP 04717, 04789-90, Exh. 15 p. MAGEE000047.) Plaintiff has also offered substantial evidence that Defendant Benson shut down the investigation into Plaintiff’s complaints, demoted her, and terminated her, as stated above. This evidence in connection with the proximity of Plaintiff’s demotion and termination is sufficient to show a high likelihood of success on the merits.

Defendants assert no argument in opposition to this contention. Therefore, based on the foregoing, the Court finds that Plaintiff has shown that it is very likely that she will prevail on her underlying claim for retaliation.

Managing Agent Status

Plaintiff contends that Defendant Benson was a managing agent for Defendants. Liability for punitive damages as a managing agent arises when an employee exercises substantial discretionary authority over decisions that ultimately determine corporate policy. (White v. Ultramar (1999) 21 Cal.4th 563, 577.)  Defendant Benson, as Vice President and General Manager, had a high degree of discretionary authority over significant aspects of the business, oversaw multiple facilities, and had control over hiring, firing, HR investigations, and employee assignments. (Nielson Decl. Exh. 3 [Deposition of Robert Benson vol. 2] 314:12-316:15; 411:2-15.)

In opposition, Defendants contend that Plaintiff has not met her burden because she has failed to present sufficient evidence that Defendant Benson was a managing agent. Defendants rely on Roby v. McKeeson Corp. (2009) 47 Cal.4th 686 and Kelly-Zurian v. Whole Shoe Co. (1994) 22 Cal.App.4th 397 in support of their contention. Specifically, Defendants contend that these cases establish that, to qualify as a managing agent, a manager must have authority to dictate corporate policy to qualify as a managing agent. (See Roby, supra, 47 Cal.4th at 714-15; Kelly-Zurian¸ supra, 22 Cal.App.4th at 421-22.) Defendants contend that Plaintiff has not offered sufficient evidence of Defendant Benson’s control over company policy to establish a very high likelihood of success on this contention.

In reply, Plaintiff contends that she has offered sufficient evidence to establish Defendant Benson’s control over formal policy. Plaintiff contends that she has offered evidence that Defendant Benson fired Plaintiff (Benson Depo 42:2-4), which left CPP Pomona without a quality manager, while he had authority to run the business as his own. (Id., 314:18, 625:9-11.) In the Court’s view, this evidence, without more, is not sufficient to establish a high likelihood of success on the merits of this contention. But that is not the end of the inquiry, as Plaintiff also argues, correctly, that control over formal policy is not a requirement under the controlling precedent of White v. Ultramar Inc. The Kelly-Zurian holding preceded the California Supreme Court’s holding in White by five years, and White does not require control over formal corporate policy to qualify as a managing agent, but rather control over decisions that ultimately determine corporate policy. (See White, supra, 21 Cal 4th at 577.)  Furthermore, as Plaintiff correctly observes, Roby is factually distinguishable in that the issue before the Roby court was whether the amount of punitive damages was proper, not whether punitive damages were warranted at all. (See Roby, supra, 47 Cal.4th at 717.) Plaintiff has shown that Defendant Benson had substantial discretionary authority over many of the essential decisions of running a corporation, such that, whether or not Defendant Benson directly dictated corporate policy, Defendant Benson ultimately dictated corporate policy. The Court therefore concludes that Plaintiff has shown that it is very likely that she will prevail on the claim that Defendant Benson was a managing agent of the corporate defendants.

Malice and Oppression

Plaintiff contends that Defendant Benson’s behavior was malicious and oppressive and may be imputed to the corporate Defendants. As stated above, “Malice” means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others. (Civ. Code § 3294(c)(1).) “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights. (Civ. Code § 3294(c)(2).)

Defendants’ Vice President of Human Resources stated that a General Manager would have no reason to know the details of an investigation before it concludes. (Nielson Decl. Exh. 6 [Deposition of Tony Hanson] 104:24-105:2.) Defendant Benson allegedly asked for updates from Defendant Udabe repeatedly during the investigation (Nielson Decl. Exh. 2 60:7-8). Defendants’ HR director for the City of Industry location similarly testified that a manager of Defendant Benson’s level requesting details on an ongoing investigation and shutting it down was highly irregular in her experience. (Nielson Decl. Exh. 11 [Deposition of Antonia Villalobos] 44:17-20; 45:4-8.) Plaintiff contends, as stated above, that Defendant Benson punished Plaintiff for her complaints by demoting her, excluding her from meetings, and rewarding one of the harassers with Plaintiff’s former direct reports. (Nielson Decl. Exh. 2 59:16-60:11, 79:15-20, 82:2-24.)

Defendants contest Plaintiff’s characterization of the evidence presented, but nowhere in their argument is any citation to any evidence supporting a different view of the facts.  The only citation Defendants offer is to the Benson deposition, in support of their arguments that Defendant Benson reorganized departments within the factory “to improve operational efficiency.” However, the excerpt cited from page 56 of the deposition is not included in any of the documents filed with the Court. The Court therefore finds that Plaintiff has shown substantial evidence of Defendant Benson’s oppressive conduct, sufficient to establish a high likelihood of prevailing on the request for punitive damages.

CONCLUSION:

            Accordingly, Plaintiff’s Motion to Compel Further Response to Request for Inspection is DENIED

            Plaintiff’s Request for Sanctions is DENIED.

            Plaintiff’s Request for Order Permitting Discovery of Defendants Cast Parts, Inc. and Consolidated Precisions Products Corporation is GRANTED.

            Moving Party to give notice.

IT IS SO ORDERED.

Dated: August 26, 2022                                  ___________________________________

                                                                                    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.