Case Name: Gregory Steshenko v. De Anza College, et al.
Case No.: 2017-CV-317602

Motion to Compel Further Responses to Requests for Production of Documents, Form Interrogatories and Requests for Admissions by Plaintiff Gregory Steshenko

Factual and Procedural Background

This is an action involving age discrimination and violation of constitutional rights. In 2016, plaintiff Gregory Steshenko (“Plaintiff”) (self-represented), 57 years old, completed a phlebotomy training program and obtained a phlebotomist state license, the prerequisite for admission to the Medical Laboratory Technician (“MLT”) program. (See Third Amended Complaint [“TAC”] at ¶ 20.) Plaintiff thereafter enrolled in the MLT program at De Anza College. (Ibid.)

After Plaintiff started the program, defendant Patricia Buchner (“Buchner”) notified him that he needed to complete an “externship” at a clinical agency in order to graduate from the program. (TAC at ¶¶ 22, 28.) The school was responsible for providing students with a list of the clinical agencies that might accept them for externship. (Id. at ¶ 28.) Thereafter, the burden is on the student to find a clinical site willing to accept them. (Ibid.) Placement for the externship is a competitive process and the college has no control over the externship sites. (Ibid.)

Defendant Buchner sent Plaintiff to three different interviews with clinical agencies in order to fulfill the externship requirement. (See TAC at ¶¶ 30, 33, 38.) Following the first two interviews, the clinical agencies rejected Plaintiff because of his age and that they were seeking an experienced phlebotomist. (Id. at ¶¶ 30, 31, 33, 34.) During the third interview, the agency director suggested that Plaintiff’s age is not suitable for an MLT role and thus he should apply for a Senior Information Technology position. (Id. at ¶ 38.) Thereafter, the clinical agency rejected Plaintiff’s candidacy and a younger person was assigned to the externship. (Id. at ¶ 39.)

Following the interviews, Plaintiff complained to defendants about the age discrimination he was subjected to. (TAC at ¶ 40.) In doing so, Plaintiff expressed his doubt that he would ever be able to secure an “externship” and graduate from the program because of it. (Ibid.) In response, defendant Buchner informed Plaintiff that she has “no other clinical sites taking students.” (Ibid.)

Plaintiff’s training was sponsored by the County of Santa Cruz. (TAC at ¶ 41.) Since Plaintiff cannot graduate from the program in a timely manner, he lost the sponsorship and no longer has the means to subsist through six months of unpaid work. (Ibid.) Thus, because of his age and lack of experience in phlebotomy, Plaintiff is unable to graduate from the program, apply for the state license and enter the job market. (Id. at ¶ 42.)
On August 10, 2017, Plaintiff filed a timely administrative claim with De Anza College for age discrimination and unlawful operation of the MLT program. (TAC at ¶ 17.) There was no response by De Anza College. (Ibid.)

On August 15, 2017, Plaintiff filed an age discrimination complaint against De Anza College with the Office for Civil Rights (“OCR”) of the US Department of Education. (TAC at ¶ 18.) OCR declined to pursue the complaint because Plaintiff already filed a complaint with the college. (Ibid.) Plaintiff therefore has exhausted his administrative remedies. (Id. at ¶ 19.)

On April 11, 2019, Plaintiff filed the operative TAC against defendants De Anza College, Buchner, Anita Muthyala-Kandula (“Muthyala-Kandula”) and Lorrie Ranck (“Ranck”) (collectively, “Defendants”) alleging causes of action for: (1) age discrimination; (2) violation of constitutional equal protections; (3) violation of due process guarantee; (4) violation of constitutional right to free public education; (5) violation of California Labor Laws; (6) breach of contract; (7) intentional infliction of emotional distress; (8) unfair business practices; and (9) taxpayer claim (violation of Code Civ. Proc., § 526a).

Discovery Dispute

Plaintiff served Defendants with the following discovery: (1) request production of documents (set one) (“RPD”); (2) form interrogatories (set one) (“FI”); and (3) requests for admissions (set one) (“RFA”). The discovery requests were served separately on each defendant. Defendants submitted discovery responses interposing objections with factual responses.

On December 26, 2018, Plaintiff sent meet and confer letters to defense counsel addressing deficiencies in the discovery responses. (See Plaintiff’s Decl. at ¶ 4, Ex. A.) In doing so, Plaintiff claimed the objections were meritless and requested supplemental responses. (Ibid.) No supplemental responses were served and the parties were unable to informally resolve this discovery dispute. Plaintiff therefore seeks intervention from the Court.

Currently before the Court is Plaintiff’s motion to compel a further response to RPD, FI, and RFA because the answers are incomplete and the objections lack merit. (Code Civ. Proc., §§ 2030.300, 2031.290, 2033.290.) Defendants filed written opposition to the motion. Plaintiff filed reply papers. No trial date has been set.

Motion to Compel Further Responses to RPD

Plaintiff moves to compel a further response to RPD Nos. 3, 6, 7, 15, 16, 17, 19, 20, 21, 25, 46, and 47 as to the various Defendants because the objections raised lack merit.

Legal Standard

A responding party to an inspection demand must respond separately to each item in the demand by stating one of the following: (1) an agreement to comply; (2) a representation of inability to comply, or (3) objections. (Code Civ. Proc., § 2031.210.) If a party demanding a response to an inspection demand deems: (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, that party may move for an order compelling further response to the demand. (Code Civ. Proc., § 2031.310-320; Weil & Brown, California Practice Guide: Civil Procedure Before Trial (Rutter Group 2018) at § 8:1495.)

RPD No. 3 (as to all Defendants)

A motion to compel further responses to RPD must “set forth specific facts showing good cause justifying the discovery sought by the demand.” (Code Civ. Proc., § 2031.310, subd. (b)(1).) The moving party establishes good cause by showing: (1) relevance to the subject matter of the case; and (2) specific facts justifying discovery. (Kirkland v. Super. Ct. (2002) 95 Cal.App.4th 92, 98 [the party who seeks to compel production has met his burden of showing good cause simply by a fact-specific showing of relevance].) Discovery is allowed for any matters that are not privileged and relevant to the subject matter, and a matter is relevant if it appears reasonably calculated to lead to the discovery of admissible evidence. (Code Civ. Proc., § 2017.010.) Moreover, for discovery purposes, information is “relevant to the subject matter” if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement thereof. (Gonzalez v. Super. Ct. (1995) 33 Cal.App.4th 1539, 1546.)

RPD No. 3 seeks production of “[a]ll students’ files maintained at the program of the students who enrolled in the program from September 1, 2012 till December 31, 2017, with the names and other identifying information of the students redacted to preserve their privacy.” Plaintiff, in conclusory terms, argues this request is relevant to his claims for discrimination and violation of labor law. However, it is not clear how information within the students’ files (aside from names and identifying information that would be redacted) is relevant to addressing Plaintiff’s claims for age discrimination and violation of California Labor Laws. Plaintiff therefore fails to establish good cause for production of this information.

Consequently, the motion to compel a further response to RPD No. 3 is DENIED.

RPD Nos. 6-7 (as to all Defendants)

RPD No. 6 seeks production of “[a]ny and all records of De Anza employee complaints of illegal discrimination at the program from September 1, 2012 till December 31, 2017.” RPD No. 7 seeks production of “[a]ny and all records of investigations of De Anza employee complaints of illegal discrimination at the program from September 1, 2012 till December 31, 2017.”

Plaintiff argues these requests are relevant to his claim for age discrimination to establish a pattern by De Anza College. This contention is not persuasive as Plaintiff is not an employee of the college. Thus, employee complaints and investigations of such complaints is not relevant to the alleged discrimination suffered by Plaintiff as a student in the MLT program. Plaintiff therefore fails to establish good cause for production.

Accordingly, the motion to compel a further response to RPD Nos. 6-7 is DENIED.

RPD Nos. 15, 16, 17, 19, 20, 21 (as to all Defendants)

RPD Nos. 15, 16, and 17 seek any and all correspondence and documents regarding the accreditation program and its approval by the State of California. As a preliminary matter, the requests appear to be overbroad and not limited by time. Also, as the opposition points out, none of Plaintiff’s claims dispute the validity of De Anza’s accreditation or state approval. (See Defendants’ Sep. Stmt. at p. 7.) The requests are therefore not relevant to this action.

Consequently, the motion to compel a further response to RPD Nos. 15, 16, 17, 19, 20, and 21 is DENIED.

RPD No. 25 (as to all Defendants)

RPD No. 25 seeks “[a]ny and all records of the financial transactions between the program and non-De Anza entities from September 1, 2012 till December 31, 2017. Plaintiff provides no good cause for production of these financial records. Therefore, the motion to compel a further response to RPD No. 25 is DENIED.

RPD No. 26 (as to De Anza College)

RPD No. 26 seeks “[a]ny and all documents that authorize the program to establish completion of an externship as a condition of graduation from the program.” Defendants argue they produced documents responsive to this request in December 2018. (See Defendants’ Sep. Stmt. at p. 9.) The opposition however does not include any supporting evidence demonstrating that Defendants served a response to RPD No. 26.

Therefore, the motion to compel a further response to RPD No. 26 is GRANTED. Defendant De Anza College shall serve Plaintiff with a verified code compliant further response, without objections, and produce all responsive documents that have not yet been produced within 20 calendar days of notice of this Order.

RPD No. 46 (as to De Anza College) and RPD No. 47 (as to Buchner, Muthyala-Kandula, and Ranck [“Individual Defendants”])

RPD Nos. 46 and 47 seek “[a]ny and all documents prepared at De Anza during the regular course of business as a result of the events complained of in the Plaintiff’s Complaint.” In opposition, Defendants claim they already produced all non-privileged documents to these requests along with a privilege log. (See Defendants’ Sep. Stmt. at pp. 10-11.) The opposition however does not include any supporting evidence demonstrating that Defendants served responses to RPD Nos. 46 and 47. Nor is there evidence that Defendants served Plaintiff with a privilege log.

Therefore, the motion to compel a further response to RPD Nos. 46 and 47 is GRANTED. Defendants shall serve Plaintiff with verified code compliant further responses, without objections, and produce all responsive documents within 20 calendar days of notice of this Order. If any documents are being withheld on the basis of privilege, Defendants shall provide the appropriate privilege log.

Motion to Compel Further Responses to FI

Plaintiff moves to compel a further response to FI Nos. 1.1, 2.2, 2.5, 2.6(b), 2.7, 2.11, 12.1, 12.2, 12.3, 12.6, 16.1, 16.2, 16.3, 16.6, 17.1, and 50.1-50.6 because the objections raised are without merit.

Legal Standard

A responding party must provide non-evasive answers to interrogatories that are “as complete and straightforward…to the extent possible,” and, if after a reasonable and good faith effort to obtain the information they still cannot respond fully to an interrogatory, the responding party must so state in its response. (Code Civ. Proc., § 2030.220.) If the responding party provides incomplete or evasive answers, or objections without merit, the propounding party’s remedy is to seek a court order compelling a further response to the interrogatories. (Code Civ. Proc., § 2030.300.) If a timely motion to compel answers is filed, the burden is on the responding party to justify any objection or failure to fully answer the interrogatories. (See Coy v. Super. Ct. (1962) 58 Cal.2d 210, 220-221 (Coy).)

FI Nos. 1.1 (as to De Anza College); 2.6(b), 2.7, 2.11 (as to Individual Defendants); 16.1, 16.2, 16.3, 16.6, 17.1 (as to all Defendants)

In opposition, Defendants claim they served supplemental responses to FI Nos. 1.1, 2.6(b), 2.7, 2.11, 16.1, 16.2, 16.3, 16.6, and 17.1. (See Defendants’ Sep. Stmt. at p. 17, fn.3.) The opposition however does not include any supporting evidence demonstrating that Defendants served supplemental responses to these interrogatories. Nor is it clear from the reply papers if Plaintiff received these supplemental responses.

Therefore, the motion to compel a further response to FI Nos. 1.1, 2.6(b), 2.7, 2.11, 16.1, 16.2, 16.3, 16.6, and 17.1 is GRANTED. Defendants shall serve Plaintiff with verified code compliant further responses, without objections, within 20 calendar days of notice of this Order.

FI Nos. 2.2 and 2.5 (as to Individual Defendants)

FI No. 2.2 requests the date and birthplace for each individual defendant. FI No. 2.5 asks the Individual Defendants to provide their current residence and previous addresses for the past five years.

Defendants object on the ground that such information violates the right to privacy. While the Individual Defendants may have a privacy interest in their contact information, their privacy interest is minimal and outweighed by Plaintiff’s interest in discovering relevant information. (See Puerto v. Super. Ct. (2008) 158 Cal.App.4th 1242, 1249-1250; Code Civ. Proc., § 2017.010.) The Individual Defendants also argue that disclosure of such information will result in unnecessary harassment by the Plaintiff. In support, Defendants attach copies of email correspondence addressing issues related to the Plaintiff. (See Combs Decl. at Ex. A.) These communications however do not sufficiently establish a pattern of harassing conduct against the Individual Defendants by the Plaintiff.

Accordingly, the motion to compel a further response to FI Nos. 2.2 and 2.5 is GRANTED. The Individual Defendants shall serve Plaintiff with verified code compliant further responses, without objections, within 20 calendar days of notice of this Order.

FI Nos. 12.1, 12.2, 12.3, 12.6 (as to Individual Defendants)

FI Nos. 12.1, 12.2, 12.3 and 12.6 seek names, contact information, and reports regarding the incident in this case. In opposition, the Individual Defendants object on grounds that these interrogatories are vague, ambiguous, violate privacy rights, and are protected by the attorney work product doctrine. These objections are not justified in opposition and thus the objections are overruled. (See Coy, supra, 58 Cal.2d at pp. 220-221 [if a timely motion to compel has been filed, the burden is on responding party to justify any objection]; see also Williams v. Super. Ct. (2017) 3 Cal.5th 531, 541 [the burden of justifying any objection and failure to respond remains at all times with the party resisting discovery].)

The Individual Defendants also object on the ground that any response to these interrogatories would violate the attorney-client privilege.

The attorney-client privilege, set forth at Evidence Code section 954, confers a privilege on the client to refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer. (Costco Wholesale Corp. v. Super. Ct. (2009) 47 Cal.4th 725, 732 (Costco).) “[T]he privilege is absolute and disclosure may not be ordered, without regard to relevance, necessity or any particular circumstances peculiar to the case.” (Gordon v. Super. Ct. (1997) 55 Cal.App.4th 1546, 1557.) “The party claiming the privilege has the burden of establishing the preliminary facts necessary to support its exercise, i.e., a communication made in the course of an attorney-client relationship. [Citations.] Once that party establishes facts necessary to support a prima facie claim of privilege, the communication is presumed to have been made in confidence and the opponent of the claim of privilege has the burden of proof to establish the communication was not confidential or that the privilege does not for other reasons apply.” (Costco, supra, at p. 733.)

Relying on City of Petaluma v. Superior Court (2016) 248 Cal.App.4th 1023 (City of Petaluma), the Individual Defendants argue that any responses to these interrogatories would require disclosure of prelitigation investigation reports which are protected by the attorney-client privilege. The Individual Defendants contend they have retained private counsel who has conducted witness interviews and prepared such a report. (See Defendants’ Sep. Stmt. at p. 21.)

However, unlike City of Petaluma, the Individual Defendants have not submitted evidence establishing they have retained private counsel to prepare prelitigation investigative reports related to this case. Thus, the objection based on the attorney-client privilege is overruled. In addition, defendants provide an incomplete factual response to FI No. 12.1 as it fails to include contact information for any of the individuals listed. Plaintiff therefore is entitled to a code compliant further response.

Accordingly, the motion to compel a further response to FI Nos. 12.1, 12.2, 12.3 and 12.6 is GRANTED. The Individual Defendants shall serve Plaintiff with verified code compliant further responses, without objections, within 20 calendar days of notice of this Order.

FI Nos. 50.1 – 50.6 (as to all Defendants)

FI Nos. 50.1 – 50.6 ask questions with related subparts addressing Plaintiff’s fourth cause of action for breach of contract. Defendants object to these interrogatories on grounds they are vague, ambiguous, and unintelligible. These objections are not justified in opposition and thus the objections are overruled.
Defendants also provide a factual response denying the existence of any contract in the operative pleading. The fourth cause of action alleges a single “implied contract” as the basis for the claim. (See TAC at ¶ 173.) In their responses, Defendants specifically deny the existence of any implied contract. Having done so, no further response is required.

Plaintiff argues these responses are defective as multiple agreements governed the relationship between the parties. (See Plaintiff’s Sep. Stmt. at p. 37.) This contention however is not supported by allegations set forth in the breach of contract claim.

Therefore, the motion to compel a further response to FI Nos. 50.1 – 50.6 is DENIED.

Motion to Compel Further Responses to RFA

Plaintiff seeks further responses to various RFA because Defendants’ answers are incomplete and the objections are meritless.

Legal Standard

On receipt of a response to requests for admissions, the party requesting admissions may move for an order compelling a further response if that party deems that either or both of the following apply: (1) An answer to a particular request is evasive or incomplete; (2) An objection to a particular request is without merit or too general. (Code Civ. Proc., § 2033.290, subd. (a).)

RFA Nos. 1-398 (as to Buchner); RFA Nos. 1-101 (as to Muthyala-Kandula); RFA Nos. 1-83 (as to Ranck); and RFA Nos. 1-53 (as to De Anza College)

These RFA ask Defendants to admit that the email messages on page(s) [Bates Numbers] are genuine. As a preliminary matter, the request as written in the separate statement, omits the page numbers and Bates numbers. The separate statement must be full and complete so that no person is required to review any other document in order to determine the full request and the full response. (See Cal. Rules of Court, rule 3.1345(c).) With these omissions, the request, as written, is not full and complete and the separate statement is therefore defective in this regard.

Beyond that, Defendants object on the ground that the excessive number of RFA is unduly burdensome, harassing, and oppressive. While there is some burden inherent in responding to discovery, the Court cannot conceive of how responding to this many RFA are even relevant to this litigation. Nor has Plaintiff provided any good cause for Defendants to respond to this excessive number of RFA.

Consequently, the motion to compel a further response to RFA Nos. 1-398 (as to Buchner); RFA Nos. 1-101 (as to Muthyala-Kandula); RFA Nos. 1-83 (as to Ranck); and RFA Nos. 1-53 (as to De Anza College) is DENIED.

RFA Nos. 54-59 (as to De Anza College); RFA Nos. 85-88 and 93 (as to Ranck); RFA Nos. 103-106 and 110 (as to Muthyala-Kandula); and RFA Nos. 400-403 and 406 (as to Buchner)

These RFA ask Defendants to admit or deny information regarding California state law and the externship program and contracts between De Anza College and other agencies. Defendants object on grounds the requests are vague, ambiguous, and unintelligible. These objections are not justified in opposition and thus the objections are overruled. The objection based on a legal conclusion is not a valid objection. (See West Pico Furniture of Los Angeles v. Super. Ct. (1961) 56 Cal.2d 407, 417 [the fact that a question calls for an opinion and conclusion is not a proper objection].) Nor have Defendants demonstrated that responding to these RFA would violate the attorney-client privilege.

Accordingly, the motion to compel a further response to RFA Nos. 54-59 (as to De Anza College); RFA Nos. 85-88 and 93 (as to Ranck); RFA Nos. 103-106 and 110 (as to Muthyala-Kandula); and RFA Nos. 400-403 and 406 (as to Buchner) is GRANTED. Defendants shall serve Plaintiff with verified code compliant further responses, without objections, within 20 calendar days of this Order.

RFA Nos. 97 and 98 (as to Ranck); RFA Nos. 114 and 115 (as to Muthyala-Kandula); and RFA Nos. 410-412 (as to Buchner)

These RFA ask the Individual Defendants to admit or deny information regarding Plaintiff’s rejection from the externship program. The Individual Defendants object to these RFA on grounds the requests are vague, ambiguous, unintelligible, and violate the attorney-client privilege. These objections are not justified in opposition and thus the objections are overruled.

Despite the objections, the Individual Defendants also provide a factual response denying these RFA. (See Defendants’ Sep. Stmt. at pp. 15-16.) In addition to their denial, they state that “Plaintiff removed himself from the externship process by not applying to other agencies after he was not selected by three programs.” (Ibid.) Having done so, no further response is required.

Consequently, the motion to compel a further response to RFA Nos. 97 and 98 (as to Ranck); RFA Nos. 114 and 115 (as to Muthyala-Kandula); and RFA Nos. 410-412 (as to Buchner) is DENIED.

The motion set on May 23, 2019

Plaintiff has filed a motion set for hearing on May 23, 2019 that appears to request that the Court consider the April 11, 2019 reply papers and a tardy Third Amended Complaint.

The Court has addressed the April 11, 2019 amended reply papers in this order, and sees no need to address the tardy Third Amended Complaint at this time. Accordingly, the May 23, 2019 hearing is ORDERED OFF CALENDAR.

The Court will prepare the Order.