Judge: Upinder S. Kalra, Case: 22STCV08863, Date: 2023-03-21 Tentative Ruling
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Case Number: 22STCV08863 Hearing Date: March 21, 2023 Dept: 51
Tentative Ruling
Judge Upinder S. Kalra, Department 51
HEARING DATE: March 21, 2022
CASE NAME: Cindy Najarro v. US Health Fairs – Org, et al.
CASE NO.: 22STCV08863
Tentative Ruling
Judge Upinder S.
Kalra, Department 51
HEARING DATE: March
21, 2022
CASE NAME: Cindy Najarro v. US Health Fairs – Org,
et al.
CASE NO.: 22STCV08863
MOTION
TO COMPEL FURTHER
MOVING PARTY: Plaintiff Cindy Najarro
RESPONDING PARTY(S): Defendant US Health Fairs – Org
REQUESTED RELIEF:
1. An
order compelling Defendant to provide further responses to Request for
Production of Documents Nos. 9-10, 16, 20
TENTATIVE RULING:
1. Motion
to Compel Further Responses as to Requests for Production of Documents is CONTINUED.
STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:
On March 11, 2022, Plaintiff Cindy Najarro (“Plaintiff”)
filed a complaint against Defendants US Health Fairs – Org. and Joshua Baerwald
(“Defendants.”) The complaint alleged nine causes of action based on labor code
violations and wrongful termination. Plaintiff alleges that they were hired by
Defendants as a full-time Clinic Manager. However, during Plaintiff’s
employment, Plaintiff alleges that they were not paid the correct wage or for
overtime hours. Plaintiff also allege that Defendant caused them to miss meal
and rest breaks, and did not pay Plaintiff for milage and other incurred
expenses. Further, after Plaintiff witnessed another individual incorrectly
administering vaccines and complaint to the Human Resources manager, Plaintiff
was terminated.
On May 4, 2022, Defendant US Health Fairs – Org. filed an
Answer.
On May 26, 2022, Defendant Joshua Baerwald filed an Answer.
ON December 30, 2022, Plaintiff filed the current Motion to
Compel Further, as to the Request for Production of Documents, Set One.
Defendant’s Opposition was filed on March 8, 2023. Plaintiff’s Reply was filed
on March 14, 2023.
LEGAL STANDARD:
The propounding party may bring a motion to
compel further responses to a demand for production if the propounding
party deems that production is deficient, incomplete, or contains meritless
objections. CCP § 2031.310(a). The legal burden to
justify refusing or failing to provide discovery lies with the objecting
party. (Coy v. Superior Court (1962)
58 Cal.2d 210, 220).
The motion must be accompanied by a
good-faith meet-and-confer declaration. CCP § 2031.310(b). “A
determination of whether an attempt at informal resolution is adequate . . .
involves the exercise of discretion.” (Stewart
v. Colonial W. Agency (2001) 87 Cal.App.4th 1006, 1016).
“The history of the litigation, the nature of the interaction between counsel,
the nature of the issues, the type and scope of discovery requested, the
prospects for success and other similar factors can be relevant. Judges
have broad powers and responsibility to determine what measure and procedures
are appropriate in varying circumstances.” Id.
CCP § 2031.310 provides the
court shall apposes monetary sanctions against a person, party, or attorney
that unsuccessfully makes or opposes a motion to compel further response,
unless that subject to sanction acted “with substantial justification or other
circumstances make the imposition of sanctions unjust.” CCP §
2023.010(h). The court “may impose a monetary sanction” against any
attorney or party, or both, to pay the reasonable expenses, including attorney
fees, if there has been a “misuse of the discovery process. CCP §
2023.030(a). “A trial court has broad discretion when imposing a
discovery sanction.” (Lee v.
Lee (2009) 175 Cal.App.4th 1553, 1559).
Meet and Confer:
The Declaration of Joshua Milon indicates that on June 2,
2022, the RPDs were propounded on Defendant. Plaintiff granted multiple
extensions and sent the responses on September 28, 2022. On October 6, 2022,
Plaintiff’s counsel sent Defendant a meet and confer letter and on October 13,
2022, the parties spoke over the phone about the discovery issues. (Dec. Milon
¶ 2-5; Ex. A-D.) Plaintiff granted Defendant a 3-week extension on October 25,
2022, and later a one-week extension on November 7, 2022. (Id. at ¶ 6-7; Ex.
E-F.) Defendant’s responses were provided on November 14, 2022, but did not
properly supplement the responses to Nos. 9-10, 16, and 20. After more meet and
confer in November and December, Defendant provided responses on December 14,
2022, but the responses were still inadequate.
Separate Statement
Under Rule 3.1345,
a Separate Statement must include the request, the response, and why a further
response is provided. Here, Plaintiff has provided a Separate Statement.
Timely:
Under CCP §
2030.300, a party has 45 days after receipt of the verified responses to file a
motion to compel further, unless the parties have agreed to a specific date in
writing. Here, the parties utilized extensions and agreed to extend the
deadline to December 30, 2022. (Dec. Milon, Ex. K.) The current motion is
timely.
ANALYSIS:
Plaintiff moves to compel Defendant
to provide further responses to Requests for Production, Nos. 9-10, 16, and 20.
·
No.
9: Any and all correspondence between YOU and PLAINTIFF, whether written,
typewritten or electronic, including emails, from April 2018 to present.
·
No.
10: Any and all correspondence between YOU and PLAINTIFF after YOU TERMINATED
PLAINTIFF, whether written, typewritten, or electronic, including emails.
·
No.
16: Any and all text communications between YOU and PLAINTIFF.
·
No.
20: Any and all email communications RELATED TO PLAINTIFF sent or received by
YOU from January 2018 to present.
Plaintiff contends that the
requested documents are relevant to Plaintiff’s claims concerning wrongful
termination and wage and hour violations. The issue concerns Plaintiff’s
status. Plaintiff asserts that they were an employee, whereas Defendant argues
that Plaintiff was an independent contractor, and thus, these laws do not
apply. Therefore, Plaintiff argues that because the issue of Plaintiff’s status
is the main issue of this case, these are relevant.
Plaintiff cites to Dynamex Operations W. v. Sup. Ct., where
the California Supreme Court ruled that the ABC test is used to determine if a
worker is an employee or independent contractor. The ABC test is as follows:
(A) that the worker is free from
the control and direction of the hirer in connection with the performance of
the work, both under the contract for the performance of such work and in fact;
(B) that the worker performs work that is outside the usual course of the hiring
entity's business; and (C) that the worker is customarily engaged in an
independently established trade, occupation, or business of the same nature as
the work performed for the hiring entity.
(Dynamex Operations W. v. Superior Court (2018) 4 Cal.5th 903,
916–917.)
First, Plaintiff argues that this
discovery will demonstrate the type of control Defendant had over Plaintiff, as
Plaintiff asserts that they received daily text messages and emails about the
time, place, and employees expected at a vaccine site. Second, Plaintiff argues
that these emails will “show that the services were provided remotely and thus
were in large part carried out and outlined over email and text
communications.” (Motion 7: 23-27.)
Defendant argues that this motion
should be denied for three reasons. First, Defendant has already produced
documents that are responsive to these requests. Defendant has provided two
document productions that included communications between Plaintiff and
Defendant as well as between employees of the LA County Department of Health. Second,
the requests are overly broad and not particularized. The terms “YOU” and
“RELATED TO” include various other definitions that would require the written
communications that would not be relevant to the current matter. Third, the
requested information is protected by a right of privacy. These potential
emails and test messages would include patient-identifying and other private
medical information, which is protected under HIPAA.
Plaintiff was the former Clinic Manager for Defendant, a medical and
health care education and services provider. (Complaint ¶ 9.) Whether Plaintiff
was an independent contractor is at issue. Evidence that documents communication
between Plaintiff and Defendant could lead to admissible evidence that establishes
an employee-employer relationship. “Section 2017.010 and other statutes
governing discovery ‘must be construed liberally in favor or disclosure unless
the request is clearly improper by virtue of well-established causes of
denial’” (Yelp Inc. v. Superior Court
(2017) 17 Cal.App.5th 1, 15). However, Defendant has presented unrebutted evidence
that the Plaintiff’s email account approximately 6,000 pages and an unknown
number of text messages.
For the reasons set for the below,
the Court, on it own motion, will continue this Motion. In the interim, the
Court will order the parties to attend an Informal Discovery Conference. The Parties
should be prepared to discuss solution to the issues below.
Request No. 9.: Plaintiff concedes that
the many the correspondence between Plaintiff and Defendant included content
that had nothing to do with any of the factors establishing an employee-employer
relationship and, in fact, may contain sensitive patient information. Plaintiff has refused to include any search
terms to limit the scope of the inquiry to attempt to narrow the scope of the inquiry.
Such a position is unreasonable. Defendant, while offering to conduct a search
with a reasonable number of search terms has yet to engage in such a search or
produce records with such a focus for Plaintiff to evaluate. This too is unreasonable.
Reasonable search terms should be utilized to capture a sufficient number of correspondence
for Plaintiff to evaluate.
Request No. 10.: The dispute here is
on the term “terminated.” This request can be easily cured by picking a date
certain i.e. all correspondence after (fill in date).
Request No. 16.: Any and all text communications. The Court has
no idea how many texts exist. It also seems that Plaintiff already has the
texts. A simple RFA authenticating the body of texts that Plaintiff has may suffice.
If Plaintiff, no longer has such texts, Defendant should offer a solution to produce
such texts.
No. 20. As to request No. 20., the request as phrased is overbroad. “Related” to is susceptible to many
interpretations. Does it mean, identify by name? Does it mean allude to Plaintiff’s
position? The vagueness the term makes the request overbroad because it
requests categories of discovery that are not relevant to this litigation nor reasonably
calculated to lead to the discovery of admissible evidence. Significant
narrowing is required.
One more thing. I quote from my
colleague and mentor Judge Lawrence Riff on how the parties should meet and
confer:
“The meet and
confer process requires good faith. Good
faith on the responder to recognize that the propounder has a right to
discovery, has a right to look under dark rocks that are inconvenient to lift
up and that the bar on obtaining discovery is really low. And good faith on the
propounder to recognize that clarity, burden, privilege and privacy are real
concerns that will often foreclose certain avenues of inquiry.”(It’s Time to Fix Our Broken Civil Discovery Culture
by Judge Lawrence Riff.)
Conclusion:
For
the foregoing reasons, the Court decides the pending motion as follows:
Motion to Compel Further is CONTINUED.
The Parties are ordered to attend an Informal Discovery Conference. The Date is
to be determined.
Sanctions will be denied because the Notice does not identify the
person or party that sanctions are sought in violation CCP § 2023.040.
Moving party is to give notice.
IT IS SO ORDERED.
Dated: March
21, 2023 __________________________________ Upinder
S. Kalra
Judge
of the Superior Court