Judge: Theresa M. Traber, Case: 21STCV27334, Date: 2022-09-28 Tentative Ruling

Case Number: 21STCV27334    Hearing Date: September 28, 2022    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     September 28, 2022               TRIAL DATE: May 16, 2023

CASE:                         Tammy Hierlihy v. Central Basin Municipal Water Dist.

CASE NO.:                 21STCV27334           

MOTION TO COMPEL FURTHER RESPONSES; REQUEST FOR SANCTIONS

MOVING PARTY:               Plaintiff Tammy Hierlihy.

RESPONDING PARTY(S): Defendant Central Basin Municipal Water District.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

            This is an employment discrimination and wrongful termination action filed on July 26, 2021. Plaintiff alleges that Defendant wrongfully terminated Plaintiff on the basis of her age and in retaliation for reporting and opposing illegal activities allegedly conducted by her employer, the Central Basin Municipal Water District.

Plaintiffs move to compel further responses to five Requests for Production, and for sanctions.

TENTATIVE RULING:

            Plaintiff’s motion to compel further responses is GRANTED

            Plaintiff’s Request for Sanctions is DENIED.

DISCUSSION:

            Plaintiff moves to compel Defendant to produce further responses to Plaintiff’s Requests for Production Nos. 52 through 56, and for sanctions against Defendant only in the amount of $7,200.00.

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 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).) 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 April 5 and August 8, 2022 to attempt to resolve this discovery dispute, without success. (Declaration of Bryan J. Lazarski ISO Mot. ¶¶5-15.) Plaintiff has provided true and correct copies of the parties’ electronic correspondence. (Id. Exhs. A-D.) Plaintiff has satisfied the statutory meet and confer requirement.

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.)

            Here, the parties agreed to extend the time to file the instant motion to August 11, 2022, the date when this motion was filed. (Lazarski Decl. Exh. D.) The motion is therefore timely.

Missing Proof of Service

            Plaintiff has not provided a copy of the proof of service of this motion. However, as Defendant has not contested proper service of the motion, the Court will overlook the absence of this document.

Late Opposition

            Defendant filed and served its opposition on September 16, 2022. Pursuant to Code of Civil Procedure section 1005(b) and accounting for the Court holiday on September 23, the opposition was due 9 court days before the hearing and was therefore due September 14, 2022. The opposition is therefore untimely. Plaintiff has objected to the opposition on this basis. However, as Plaintiff has also responded substantively to the opposition and has not shown that it was otherwise prejudiced by the late opposition, the Court will overlook the late filing and consider the opposition and the reply on their merits.

Relevance

            Plaintiff moves to compel responses to Requests for Production Nos. 52 through 56. Requests Nos. 52 through 54 seek text messages, emails, and all other written communications between Defendant’s Directors from January 1, 2020 through the present. Plaintiff contends that these documents are relevant in that, according to Plaintiff, Defendant’s Directors had substantial communications to coordinate their efforts to terminate Plaintiff. Plaintiff has therefore shown that these documents are relevant to the allegations in the Complaint and has shown good cause for these requests.

            Request No. 55 seeks social media posts relating to the allegations in the Complaint by any of Defendant’s Directors from January 1, 2020 through the present. These documents are relevant to the Complaint on their face, and Plaintiff has therefore shown good cause for this request.

            Request No. 56 seeks documents relating to communications by any of Defendant’s Directors and Brian Hews from January 1, 2020 through the present. Plaintiff contends that these documents are necessary because, according to Plaintiff, the Directors used Mr. Hews and his news blog as the conduit for their public messaging. Plaintiff does not clearly state how these documents are relevant to the matter at hand. However, as Defendant does not contest that there is good cause for this request, the Court will overlook this defect with respect to this request.

            Defendant does not contest that Plaintiff has good cause for these requests and asserts no objections to an order compelling further responses in its opposition, instead stating that it has attempted to comply with these requests in good faith. Therefore, the only remaining question is whether sanctions are warranted.

Sanctions

            Plaintiff requests sanctions in the amount of $7,200 in attorney’s fees.

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 2031.310(h) 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.

            Defendant’s sole objection to this motion is that sanctions are unwarranted because Defendant has endeavored to comply in good faith with these requests. Defendant concedes that it has constructive control over the documents sought, as, when officers of a public entity conduct public business on personal devices and accounts, those messages are public records within the constructive control of the public entity. (City of San Jose v. Superior Court (2017) 2 Cal.5th 608, 623.) Defendant contends, however, that it does not have actual control over these documents because the Directors are not the District’s employees, and thus, Defendant has limited means available to it to retrieve those documents. (See Declaration of Jeffrey A. Rector ISO Opposition ¶¶ 3-4.) According to Defendant, four of the Directors have indicated that they have no responsive records, while the other two have refused to comply. (Rector Decl. ¶¶ 5-8.) Defendant therefore contends that imposition of sanctions would be unjust, as Defendant has endeavored to comply and has no means of forcing the Directors to comply when they do not wish to do so. Furthermore, Defendant argues that sanctions are unjust because Plaintiff could have sought these documents from the directors themselves through other means, such as via a subpoena. Finally, Defendant also contends that the amount of sanctions is excessive in light of the brevity of the opposition and Defendant’s attempts to comply.

            In reply, Plaintiff first contends that Defendant has not shown that sanctions are unjust because Defendant has a range of legal tools that are available to compel the compliance of its directors, and Defendant’s documented efforts are not sufficient to establish reasonable diligence. However, Plaintiff cites no specific examples and does not address Defendant’s contention that the Directors, as elected officers, are outside of Defendant’s direct control. General, sweeping assertions are not sufficient in the Court’s view to counter Defendant’s averments that it has made its best efforts to comply in good faith with the requests.

            Plaintiff next argues that the method of discovery is within the discretion of Plaintiff, and it is not for Defendant to say that sanctions for a failure to comply with the chosen method are unjust because Plaintiff could have chosen an alternative means. The Court agrees with Plaintiff that the availability of other means of discovery is not sufficient to establish that sanctions would be unjust.

            Finally, Plaintiff argues that the claim by four of the Directors that they have no responsive documents (see Rector Decl. ¶ 6), when Plaintiff already has documents showing that two of those Directors used personal emails to conduct district business (see Lazarski Decl. Exh. H), suggests, at minimum, a failure to conduct a diligent search and reasonable inquiry, if not spoliation of evidence. However, this evidence is not sufficient to show a lack of reasonable diligence or spoliation of evidence on the part of Defendant. At most, it shows that the Directors may be engaged in such activity despite Defendant’s attempts to ensure they comply with the discovery requests. Under these circumstances, the Court cannot conclude that this evidence is sufficient to overcome Defendant’s contentions and averments of good-faith compliance.

            Based on the foregoing, the Court concludes that the imposition of sanctions at this juncture would be unjust. 

CONCLUSION:

            Accordingly, Plaintiff’s motion to compel further responses is GRANTED.

            Plaintiff’s Request for Sanctions is DENIED.

            Moving Party to give notice.

IT IS SO ORDERED.

Dated: September 28, 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.