Carla Jonasson vs James Gelb
Case No: 18CV06268
Hearing Date: Fri Jun 21, 2019 9:30

Nature of Proceedings: Motion to Compel Responses to Discovery/Sanctions

Tentative Ruling: The court grants, in part, plaintiff Carla Jonasson’s motion to compel further responses to discovery requests. The court orders defendant James Gelb to provide, on or before June 24, further responses to special interrogatories 79 and 80 and requests for production of documents ##23 and 24. The court orders defendant James Gelb to pay a monetary sanction in the amount of $1,000 to counsel for plaintiff Carla Jonasson.

Background: Plaintiff Carla Jonasson filed her complaint against defendant James Gelb for harassment in violation of California’s Fair Employment and Housing Act (“FEHA”), wrongful termination in violation of FEHA, unlawful denial of minimum wage and overtime wages, failure to provide meal and rest breaks, failure to issue accurate and itemized wage statements, conversion, civil rights violations, and intentional and negligent infliction of emotional distress. On April 12, 2019, the court sustained defendant’s demurrer to the eighth, ninth, and tenth causes of action for conversion, violation of the Unruh Civil Rights Act for equal privileges (Civil Code §51), and violation of the Unruh Civil Rights Act for sexual harassment (Civil Code §51.9), without leave to amend. On April 19, defendant filed an answer and cross-complaint. On May 9, defendant dismissed the cross-complaint without prejudice.

Motion: Plaintiff moves for an order compelling defendant to provide further responses to special interrogatories (“SI”) ##76-80 and requests for production of documents (“RFP”) ##23 and 24. Plaintiff also seeks a monetary sanction of $3,635. Defendant opposes the motion.

1. Analysis:

SI #76: “Identify all crimes to which YOU have pleaded guilty.”

SI #77: “State all facts giving rise to any crimes to which YOU have pleaded guilty.”

SI #78: “State the name/case number of any crimes to which YOU have pleaded guilty.”

These three interrogatories are overbroad as they are not limited in time or to types of crimes. The interrogatories are not limited to felony convictions, which may be used for purposes of attacking the credibility of a witness pursuant to Evid. Code § 788. The interrogatories are not reasonably calculated to lead to admissible evidence in his case as evidence of any crime, regardless of type or severity, would not be relevant to plaintiff’s claims. Every civil case does not open up a party’s entire criminal history to discovery. The court will not order further responses to SI ##76-78.

RFP ##23 and 24 and SI ##79 and 80 relate to a well-publicized incident on November 7, 2017, in which defendant addressed a young gay man with epithets referring to his sexual orientation and referencing sexual acts. (The specific statements are referenced in the motion and the court will not repeat them here.) Defendant refers to this incident as the “State Street incident.” Defendant was criminally charged in connection with that incident and pled no contest to an infraction (Penal Code §§ 17(d), 415(3)). In plaintiff’s harassment claims, she alleges that defendant addressed her with sexual epithets and requested that she perform perverse sexual acts. [Complaint ¶¶16, 17] (Again, the court will keep references to the specific statements alleged in the complaint to a minimum for purposes of addressing this motion.)

While prior conduct is not admissible to prove conduct on a specified occasion, evidence that a person committed a crime, civil wrong, or other act is admissible when relevant to prove some fact other than a defendant’s disposition to commit such an act, “such as motive, opportunity, intent, preparation, plan, knowledge, identity, [or] absence of mistake or accident.” Evid Code § 1101(b).

Defendant says that the State Street incident is not relevant or reasonably calculated to lead to the discovery of admissible evidence in this case. Defendant says that plaintiff “is not a man and has not asserted any claims that she was discriminated against based upon her sexual orientation.” When comments of the same derogatory nature (“faggot,” “fag” on the one hand; “bitch,” “slut,” “whore,” “c**t,” “gold digging” on the other) and references to similarly explicit sex acts are directed at different types of people, they still evince conduct suggesting relevant motive, opportunity, intent, knowledge, or absence of mistake. Inquiries into the State Street incident are reasonably calculated to lead to the discovery of admissible evidence in this case.

The court will order defendant to provide a further response to SI ##79 and 80, which have to do with defendant’s reasons for his conduct, not criminal charges.

Defendant asserts that he has a constitutional right to privacy regarding his criminal history. The court has dispensed with the generalized inquiry into guilty pleas above. RFP #23 seeks communications defendant had with law enforcement “surrounding the misdemeanor charges against [defendant]” relating to the State Street incident. RFP #24 seeks statements defendant gave to the police, the district attorney, or law enforcement “surrounding the misdemeanor charges against [defendant]” relating to the State Street incident.

Defendant cites authority relating to a right to privacy generally. He does not cite any authority that inquiries into specific criminal conduct invade a party’s privacy.

Communications with law enforcement regarding his statements may illuminate defendant’s motive, intent, knowledge, identity, or absence of mistake or accident.

Defendant objects that the discovery is vague, ambiguous, and overbroad. SI ##79 and 80 and RFP ##23 and 24 are very specific and understandable, notwithstanding the curious use of the word “surrounding” in RFP ##23 and 24.

Defendant objects that the discovery is burdensome, oppressive, and harassing. “An ‘objection based upon burden must be sustained by evidence showing the quantum of work required.’” Williams v. Superior Court, 3 Cal.5th 531, 549 (2017), quoting W. Pico Furniture Co. v. Superior Court, 56 Cal.2d 407, 417 (1961). “[S]ome burden is inherent in all demands for discovery. The objection of burden is valid only when that burden is demonstrated to result in injustice.” West Pico Furniture Co. v. Superior Court, 56 Cal.2d 407, 418 (1961). Defendant has not demonstrated burden, oppression, or harassment.

Defendant objects that communications with law enforcement are subject to the attorney-client and attorney work product privileges. Any communication with law enforcement is not a communication between attorney and client. As to the attorney work product objection, disclosure of work product operates as a waiver “only when otherwise protected information is divulged to a third party who has no interest in maintaining the confidentiality … of a significant part of the work product.” Laguna Beach County Water Dist. v. Superior Court, 124 Cal.App.4th 1453, 1459 (2004). It is hard to imagine that law enforcement would have an interest in maintaining the confidentiality of any work product submitted to it by a criminal defendant. Nevertheless, defendant may assert attorney-client work product as privileged and must submit a privilege log, which shall “provide the identity and capacity of all individuals who authored, sent, or received each allegedly privileged document, the document’s date, a brief description of the document and its contents or subject matter sufficient to determine whether the privilege applies, and the precise privilege or protection asserted.” Catalina Island Yacht Club v. Superior Court, 242 Cal.App.4th 1116, 1130 (2015). (The court is not deciding the validity of any such objection.)

2. Monetary Sanction: Plaintiff seeks a monetary sanction in the amount of $3,635. CCP §§ 2030.300(d) and 2031.310(h) provide that the court shall impose a monetary sanction against the party who unsuccessfully opposes a motion to compel further responses to interrogatories and requests for production, unless it finds that the party acted with substantial justification or that other circumstances make the imposition of the sanction unjust. The court is not granting the motion in full. The court will order a reduced monetary sanction in the amount of $1,000.

3. Conclusion: The court grants, in part, plaintiff Carla Jonasson’s motion to compel further responses to discovery requests. The court orders defendant James Gelb to provide, on or before June 24, further responses to special interrogatories 79 and 80 and requests for production of documents ##23 and 24. The court orders defendant James Gelb to pay a monetary sanction in the amount of $1,000 to counsel for plaintiff Carla Jonasson.