Judge: Yolanda Orozco, Case: 20STCV49297, Date: 2022-09-22 Tentative Ruling
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Case Number: 20STCV49297 Hearing Date: September 22, 2022 Dept: 31
MOTION
TO COMPEL FURTHER RESPONSES TO REQUESTS FOR PRODCTION IS GRANTED, IN PART
Background
On December 24, 2020, Plaintiff Anita Wright (“Plaintiff”) filed the instant action against Defendants City of Los Angeles Department of Water and Power (“DWP”), Phil Leitner (“Leitner”), Dave Cisneros (“Cisneros”), and Does 1 through 10 (collectively, “Defendants”). The Complaint asserts causes of action for:
1)
Harassment in violation of FEHA;
2)
Discrimination in violation of FEHA;
3)
Retaliation in violation of FEHA; and
4) Failure to take necessary remedial action in violation of FEHA.
On June 27, 2022, Plaintiff brought a Motion to Compel Further Responses to Request for Production of Documents, Set One, and Monetary Sanctions.
No opposition or reply has been filed.
On August 19, 2022, an Informal Discovery Conference (IDC)
was held but no resolution was reached.
Legal Standard
Under Code of Civil Procedure section 2031.310(a), parties may move for a further response to request for production where an answer to the requests was evasive or incomplete or where an objection is without merit or too general.
Notice of the motions must be given within 45 days of service of the verified response, otherwise, the propounding party waives any right to compel a further response. (Code Civ. Proc. § 2031.310(c).)
The motions must also be accompanied by a meet and confer declaration. (Code Civ. Proc. § 2031.310(b).)
Finally, Cal.
Rules of Court, Rule (CRC) 3.1345 requires that all motions or responses
involving further discovery contain a separate statement with the text of each
request, the response, and a statement of factual and legal reasons for
compelling further responses. (Cal. Rules of Court, Rule 3.1345, subd. (a)(3)).
meet and confer
Plaintiff’s
counsel asserts he attempted to meet and confer with defense counsel regarding
the deficiencies in Defendants’ served response. (Shigut Decl. ¶¶ 8, 9, Ex. B,
C.) Thus, the meet and confer requirement is met.
Discussion
Plaintiffs seek further responses to Requests in Set One, Nos. 1, 3-9, 22, 24-29, 32,33, 37-40, 42, and 43-47, on grounds that Defendants have not served substantive responses or produced documents and that Defendants have provided boilerplate and baseless objections without demonstrating how each objection applies.
Request No. 1: “All DOCUMENTS identified in YOUR answers to FORM INTERROGATORIES
EMPLOYMENT LAW, SET NUMBER ONE (1)”
Defendants object to the request on the basis that the majority of the Documents identified in answers to Form Interrogatories are overbroad, burdensome, and oppressive because they are equally available to Plaintiff via intranet, internet or were personally handed to Plaintiff during her employment. Accordingly, Defendants will only produce documents within its possession, custody, or control that are not equally available to Plaintiff via the intranet or internet. Discovery is ongoing.
Plaintiff asserts that Defendants do not identify which documents are not equally available to Plaintiff and which documents may be omitted from Defendants’ production based on the belief that the documents may be equally available to Plaintiff. The Court agrees that the response is vague and ambiguous, and not Code-compliant.
Defendants are ordered to provide Plaintiff with a list of all
documents Defendants contend are equally available to Plaintiff and that will
be omitted from response No. 1. Accordingly, the request is GRANTED, IN PART.
Request No. 3: “Any and all DOCUMENTS which establish,
evidence, relate or refer to YOUR personnel policies and procedures,
guidelines, rules etc. regarding investigating complaints of discrimination,
harassment and retaliation from the date of plaintiff’s hire through the
present.”
Defendants object to the request on the based that documents that refer to LADWP personnel policies are overbroad, burdensome, and oppressive because the majority of the documents identified are equally available to Plaintiff via the intranet, internet, or personally handed to her during her employment.
Plaintiff has worked for Defendant DWP for over 30 years and Plaintiff has not shown good cause as to why documents going back decades are needed. Moreover, the statute of limitations for a FEHA complaint is three years. (Govt. Code § 12969.)
Defendants have not stated that the request is burdensome due to the volume of the documents requested, but because Plaintiff may have access to the documents via other means. Moreover, Defendant does not identify which specific documents it believes Plaintiff can obtain by other means and which documents it will provide to Plaintiff.
The
request is GRANTED, IN PART. Since Plaintiff filed her EEO complaint on or
about August 19, 2019, the Court orders that all responsive documents from
August 20, 2016, to the date of Plaintiff filed this action.
Request No. 4: “All DOCUMENTS constituting or relating to any investigation of plaintiff’s performance conducted by YOU at any time during her employment.”
Defendants object to the request on the basis that the
request is overbroad and relates to any investigation of Plaintiff’s
performance since 1990 and more than 30 years have passed. Instead, Defendant
will only offer documents related to the Notice to Correct Deficiencies given
to Plaintiff in 2019.
The Court agrees that the documents requested relate directly to Plaintiff’s employment, especially her work performance. Defendants do not allege that the request is burdensome or oppressive due to the number of investigations Defendants conducted regarding Plaintiff’s work performance but the fact that she had such a long employment history with Defendants. Moreover, this information is not available to Plaintiff by other channels and is directly relevant to any allegations that Plaintiff’s work performance was poor, which is what Defendants claim is the reason for failing to promote Plaintiff.
Accordingly,
Plaintiff has shown good cause as to the information sought is necessary and
relevant. Plaintiff’s request for further responses as to request No. 4 is
GRANTED.
Request No. 5: “All DOCUMENTS constituting or relating to any investigation of plaintiff conducted by YOU at any time during her employment with YOU.”
Defendants assert that the documents sought are protected from disclosure by the attorney work product doctrine and the attorney-client communication privilege. Defendants do not deny that an investigation took place during the time of Plaintiff’s employment.
Defendants have not responded to this motion and as the responding party, they have the burden of establishing a valid objection, including any claim of privilege. (See Coy v. Superior Court (1962) 58 Cal.2d 210, 220.) Accordingly, Defendant has not met its burden of justifying that the information sought is privileged. Moreover, to the Court’s knowledge, Defendant has not provided a privilege log. (See Code Civ. Proc., § 2031.240, subd. (c)(1) [“If an objection is based on a claim of privilege or a claim that the information sought is protected work product, the response shall provide sufficient factual information for other parties to evaluate the merits of that claim, including, if necessary, a privilege log.].”
Accordingly, the Court finds
Defendants’ objection lacks merit and GRANTS Plaintiff’s request to compel
further responses to request No. 5.
Request No. 6: “DOCUMENTS constituting or relating to any discipline or proposed discipline of plaintiff at any time during her employment with YOU.”
Defendants object to the request on the basis that all documents that relate to any discipline or proposed discipline of Plaintiff’s performance since 1990 are overbroad, burdensome, and oppressive because more than thirty (30) years have passed since Plaintiff’s hire.
The Court agrees that the documents requested are relevant and necessary. Moreover, a boilerplate objection that a request is burdensome is insufficient. If a party asserts a “burdensome” objection, that party bears the burden of “showing the quantum of work required” to respond to discovery and articulate that burden that is being imposed on that party.¿(West Pico Furniture Co.¿v.¿Los Angeles v. Superior Court¿(1961) 56 Cal. 2d 407, 417-418.) Defendants have not met the burden of showing the request is burdensome.
Based on
the above, the Court GRANTS Plaintiff’s request for a further response as to
request No. 6.
Request Nos. 7 & 8:
“Any and all DOCUMENTS which establish,
evidence, relate or refer to any and all COMMUNICATIONS by any Defendant CITY,
including any of YOUR employees or agents, pertaining to plaintiff at any time
during her employment with YOU.”
“Any and all DOCUMENTS which establish, evidence, relate
or refer to any and all COMMUNICATIONS between Defendant CITY and any other
person or entity, including any of YOUR employees or agents, pertaining to
discipline of Plaintiff at any time during her employment with YOU.”
Defendants fail to show that the requested information is privileged, and thus any claim of privilege is without merit. However, the Court agrees that the request is overbroad with respect to the scope of the request.
Accordingly, requests Nos. 7 and 8 are GRANTED, IN PART. Defendants are to produce responsive documents requested but only for the past 5 years.
Request No. 9: “Any and all
DOCUMENTS constituting Plaintiff’s payroll records during the last 10 years.
This demand includes but is not limited to, all documents regarding plaintiff’s
compensation and benefits during her employment with YOU, including paycheck
stubs with all overtime paid to plaintiff.”
The Court finds that any claims of privilege are without merit but agrees that the request is overbroad in scope.
Accordingly request No. 9 is GRANTED, IN PART. Defendants are to produce responsive documents requested in No. 9 but only for the past 5 years.
Request No. 22: “Any and all
statements of witnesses or potential witnesses or other persons interviewed by
or on behalf of YOU pertaining to plaintiff at any time during her employment
with YOU.”
Defendants have failed to show that all of the requested
information is privileged and not discoverable. If witnesses were interviewed
with respect to the allegations made in this case, the Court agrees that any
such statements would be work product. However, the request goes beyond this
case and Defendant has not shown how any such statements would be privileged.
Accordingly, request No. 22 is GRANTED, IN PART.
Request No. 24: “Any and all
DOCUMENTS which establish, evidence, refer or relate to any alleged improper
conduct by plaintiff during her employment with YOU including, but not limited
to, alleged incompetence, violations of company policy or dishonesty.”
Accordingly, request No. 24 is GRANTED IN PART. Defendants are to provide the documents requested in No. 24 relating to any allegations of improper conduct by Plaintiff during the last 10 years.
Request No. 25: “Any and all
DOCUMENTS which establish, evidence, refer or relate to any and all job titles
and work assignments held by plaintiff during her EMPLOYMENT with you.”
Defendants assert that the documents sought are protected from disclosure by the attorney work product doctrine and the attorney-client communication privilege. They also assert the request is overbroad and will only produce a single document: Plaintiff’s payroll chart showing the history of assignments she has held.”
Defendants have not provided sufficient evidence to show that the information sought is privileged. Moreover, Plaintiff has shown good cause as to why the information sought is relevant and discoverable. Thus, the Court finds Defendant’s objection is without merit.
Accordingly, request No. 25 is GRANTED.
Request Nos. 26-29: Seeks any and all Complaints of discrimination,
harassment, and retaliation made to Defendant during Plaintiff’s employment.
The Court agrees that the request is overbroad as to the time period. Nevertheless, Plaintiff has articulated good cause as to why the information sought is relevant. In particular, such information may constitute “me too” evidence. Moreover, any privacy concerns can be mitigated by a protective order or redactions.
Accordingly, the request is GRANTED, IN PART. Defendants are to provide documents responsive to requests Nos. 26 to 29 received during 10 years before this lawsuit was filed.
Request No. 32: “Any and all
DOCUMENTS which establish, evidence, refer, or relate to any disciplinary
action taken against any employee which relates or pertains to any complaints
made by Plaintiff during her employment with YOU concerning discrimination,
harassment and retaliation, including complaints made to EEOS including but not
limited to, Phil Leitner, Dave Cisneros, Dave Haerle, Chris Lynn, Paul Sanchez,
Chesley Kelley.”
The Court agrees that the request is vague as to the time
period given Plaintiff’s 30-plus years with LADWP. However, the information
sought is relevant to Plaintiff’s case and any privacy concerns can be
mitigated by a protective order or redactions.
Defendants are to provide further responses and responsive documents for the past 5 years to the present.
Request No. 33: “Any and all email communications by Defendants’ management to any person or entity which pertains to Plaintiff at any time during her employment.”
The Court agrees the request is overbroad in subject matter, time period, and scope due to Plaintiff’s 30 years at LDWP. However, any privacy concerns are mitigated by the fact that the request pertains to Plaintiff and is relevant in determining any management decisions that relate to Plaintiff’s terms and conditions of employment.
Accordingly, Plaintiff’s request to No. 33 is GRANTED IN, PART. Defendants are to provide all email communications by Defendants’ management to any person or entity that pertains to Plaintiff’s employment, including terms, conditions, and work performance for the last 10 years.
Request Nos. 37 & 38: Relate to the personnel files and
employment records of Defendants David Cisneros and Phil Leitner
The Court agrees that the request is overbroad in subject matter, time period and scope and protected from disclosure due to the right to privacy. Moreover, Plaintiff has not sufficiently provided good cause or that the personnel files contain admissible evidence. Foundational discovery should be undertaken first to determine the existence of relevant documents from these Defendants.
Request Nos. 37 and 38 are DENIED.
Request No. 40: “Any and all DOCUMENTS which establish, evidence, refer, support or relate to denying Plaintiff’s requests for overtime at any time during the last 5 years.”
Defendants object on the basis that the request is not relevant and is overbroad in subject matter, time period, and scope. The Court finds that the request is not overbroad because it is limited to the last 5 years and under Labor Code section 1198.5(a), Plaintiff is entitled to her personnel record. Furthermore, the Defendants have failed to show that the documents requests are overbroad.
Accordingly, the request for a further response to No. 40 is GRANTED.
Request Nos. 39, 42-45, and 47
Plaintiff’s request Nos. 39, 42-45 and 47 relate to work and pay records of non-party Hugo Fimbres who took over Plaintiff’s West LA Assignment.
The Court finds that Plaintiff has not articulated good cause
for or the relevancy of for the information sought relating to Mr. Fimbres, or
why his privacy rights should be ignored.
Request Nos. 46: “Any and all DOCUMENTS which establish,
evidence, refer, support or relate to approving Hugo Fimbres’ requests for
overtime since he took over Plaintiff’s West LA assignment.”
The Court finds that Plaintiff has articulated good cause as to the relevancy of the information sought and finds Plaintiff’s right to this discovery is more compelling than any privacy right of Mr. Fimbres. Any privacy concerns can be mitigated by a making this production subject to a protective order. The Court finds that the request is not vague or ambiguous.
Accordingly, the request for further response to No. 46 is GRANTED.
Request for Sanctions
Code of Civil Procedure section 2031.310, subdivision (h) provides that “the court shall impose a monetary sanction . . . against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further response to a demand, 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.”
Plaintiff seeks $4,821.65 in reasonable costs and attorney’s fees for bringing the motion. This includes the $61.65 filing fee. Plaintiff’s counsel’s billing rate is $350.00, with 8.6 hours drafting the motion, an estimated 3.0 hours drafting replies, and 2.0 hours traveling to and from the hearing. (Shigut Decl. ¶ 13.)
The Court finds the amount requested to be excessive and therefore unreasonable and awards sanctions in the amount of 4.0 hours of work at a billing rate of $350.00, totaling $1,400.00 in sanctions plus the $61.65 filing fee, for a total of $1,461.65.
Conclusion
The Court GRANTS this Motion as indicated above. Code-compliant responses must be served and documents must be produced within 30 days.
The Court also GRANTS Plaintiff’s request for sanctions IN PART, in the amount of $$1,461.65 against Defendants and Defendants’ counsel.
Plaintiff to give notice.
The
parties are strongly encouraged to attend all scheduled hearings virtually or
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