Case Number: BC717676 Hearing Date: November 22, 2019 Dept: 32

Maria Teutla,

Plaintiff,

v.

GI & DO INC., et al.

Defendants.

Case No.: BC717676

Hearing Date: November 22, 2019

[TENTATIVE] order RE:

(1) motions to compel further responses from gi & do to rpd, set two, and si, two

(2) motion to compel further responses from chung to si, set one

BACKGROUND

Plaintiff Maria Teutla (“Plaintiff”) commenced this action against Defendants Gi & Do Inc. (“Gi & Do”), Kay Kim (“Kim”), Jasmin Padilla (“Padilla”), and Chong H. Chung (“Chung”) (collectively, “Defendants”) on August 13, 2018. The operative pleading is the First Amended Complaint (“FAC”) filed on December 28, 2018. The FAC asserts causes of action for (1) race/color discrimination; (2) race/color harassment; (3) failure to prevent harassment; (4) retaliation; (5) disability discrimination; (6) failure to provide reasonable accommodations; (7) failure to engage in the interactive process; (8) wrongful termination; (9) intentional infliction of emotional distress; (10) whistleblower retaliation; (11) pregnancy discrimination; (12) failure to pay all wages upon termination; and (13) disability harassment. The FAC alleges in pertinent part as follows.

Plaintiff is Hispanic with dark skin. Plaintiff worked as a receptionist for Defendants from November 2013 through September 2017.

Early in her employment with Defendants, Plaintiff was treated differently and worse than other employees who were non-Hispanic and who had fair skin. For example, Defendant Kim, Gi & Do’s Human Resources Manager, refused to train Plaintiff and instructed other employees not to speak to her. Kim would give Plaintiff extra assignments that were not part of her job duties including sweeping floors and cleaning couches. Chung, the company owner, required Plaintiff to ask permission to use the restroom. When Plaintiff made mistakes, Defendants would yell at her.

In Fall 2014, Plaintiff became pregnant. She informed Defendants of her pregnancy and hoped that the mistreatment she faced would subside. It did not. Because of the constant discrimination that she faced, Plaintiff was under a great amount of stress and suffered a miscarriage in November 2014.

In 2016, Plaintiff was involved in a car accident and informed Chung. Days later, Chung demoted Plaintiff to the Production Department where she was only permitted to maintain the fabric packing list. Chung replaced Plaintiff with a fair-skinned Hispanic employee. In the Production Department, Plaintiff continued to be subject to discrimination and harassment. Padilla, a Production Department employee, constantly yelled at Plaintiff, spoke negatively about her to coworkers, threw paperwork at her, and sprayed aerosol in her workstation because she claimed that Plaintiff “stunk.”

In August 2016, Plaintiff learned that she was pregnant again. Plaintiff suffered another miscarriage because of the hostile work environment she faced. Subsequently, Kim told Plaintiff that she should not have sex while pregnant, insinuating that Plaintiff was to blame for the miscarriage. Plaintiff reported Padilla’s continuing misconduct to Kim and Chung who, in response, did nothing.

In September 2017, Plaintiff told Kim that she was extremely stressed and having panic attacks which limited her ability to work effectively. Kim dismissed Plaintiff’s concerns, stating that Plaintiff “does not do anything.” When Chung learned about Plaintiff’s concerns, Chung told Plaintiff that she did not want any “sick people in her company” and told her to look for another job. The next day, Chung terminated Plaintiff on the pretext that she was “downsizing due to slow business.”

LEGAL STANDARD

A. Motion to Compel Further re: RPDs

On receipt of a response to an RPD, the demanding party may move for an order compelling further responses to the demand if the demanding party deems 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. (CCP § 2031.310(a).)

Motions to compel further responses to RPDs must set forth specific facts showing good cause justifying the discovery sought by the request. (CCP § 2031.310(b).) To establish good cause, a discovery proponent must identify a disputed fact that is of consequence in the action and explain how the discovery sought will tend in reason to prove or disprove that fact or lead to other evidence that will tend to prove or disprove the fact. (Digital Music News LLC v. Superior Court (2014) 226 Cal.App.4th 216, 224 disapproved on other grounds by Williams v. Superior Court (2017) 3 Cal.5th 531; see also Kirkland v. Superior Court (2002) 95 Cal.App.4th 92, 98 (characterizing good cause as “a fact-specific showing of relevance”).) If good cause is shown by the moving party, the burden shifts to the responding party to justify any objections made to disclosure of the documents. (Kirkland, supra, 95 Cal.App.4th at 98.)

B. Motion to Compel Further re: SIs

On receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that (1) an answer to a particular interrogatory is evasive or incomplete, (2) an exercise of the option to produce documents under CCP section 2030.230 is unwarranted or the required specification of those documents is inadequate, or (3) an objection to an interrogatory is without merit or too general. (CCP § 2030.300(a).) The responding party has the burden of justifying the objections thereto. (Coy v. Sup.Ct. (1962) 58 Cal.2d 210, 220-21.)

DISCUSSION

A. RPD Motion against Gi & Do

Plaintiff moves to compel Gi & Do to provide further responses to Plaintiff’s RPD, Set Two, Nos. 1-24. Plaintiff also requests monetary sanctions against Gi & Do and its counsel in the amount of $4,060.

On June 20, 2019, Plaintiff served her second set of RPDs on Gi & Do. (Shah Decl. ¶ 2.) On August 16, 2019, Gi & Do served verified responses to the RPDs. (Shah Decl. ¶ 2, Exs. 1-2.) Gi & Do’s responses to RPD Nos. 1-24 consist entirely of objections such as overbreadth, vagueness, and irrelevancy. In addition, Gi & Do assert that these RPDs violate Civil Code section 3295.

1. Good Cause

RPD Nos. 1-18 request tax returns and profit and loss statements from 2010 to 2019. RPD No. 19 requests all documents that support Gi & Do’s position that Plaintiff was laid off due to the company’s financial state. RPD Nos. 20-24 request documents relating to whether Gi & Do laid off any employees from 2015 to 2019.

Plaintiff asserts that good cause supports these requests because Gi & Do claims that Plaintiff’s termination resulted from a downturn in its business and these RPDs concerning Gi and Do’s financial state and lay off practices explore this asserted rationale. The Court agrees. In her Complaint, Plaintiff alleges that Defendants terminated her on the basis of her race or color (Compl. ¶ 21) and as retaliation for complaining about Defendants’ unlawful harassment and discrimination (Compl. ¶¶ 41-42). Defendants, conversely, contend that Plaintiff was laid off due to downsizing. (Shah Decl. Ex. 5, p. 7.) Corroborating this, Chung testified during deposition that Gi & Do has undergone a significant slowdown in business from 2013 to the present. (Shah Decl. Ex. 3, pp. 24, 27-28.) These RPDs may assist Plaintiff in showing that this asserted basis for terminating her was pretextual.

2. Objections

a. RPD Nos. 1-19

Gi & Do argues that Civil Code section 3295(c) bars Plaintiff from obtaining documents concerning its financial condition and therefore bars RPD Nos. 1-19. That subdivision provides: “No pretrial discovery by the plaintiff shall be permitted with respect to [evidence of the defendant’s financial condition] unless the court enters an order permitting such discovery….” Gi & Do claims that Plaintiff has not obtained a court order permitting this discovery.

Gi & Do are mistaken. This subdivision bars discovery requests for the defendant’s financial condition when the basis for those discovery requests is to obtain evidence to support the plaintiff’s punitive damages claim. This subdivision does not bar a plaintiff from propounding discovery requests for the defendant’s financial condition when “the documents sought by [plaintiff] are fundamental to his case.” (Rawnsley v. Superior Court (1986) 183 Cal.App.3d 86, 91.) In this case, documents about Gi & Do’s financial condition are fundamental to Plaintiff’s case because she must show that Gi & Do’s asserted reason for terminating her was pretextual.

Gi & Do claims that records for years predating November 2013 are not relevant or likely to lead to admissible evidence because such records predate Plaintiff’s employment with Gi & and her eventual termination. The Court disagrees. To build a strong case that Gi & Do’s worsening financial condition did not prompt the company to fire her, Plaintiff may have to demonstrate the financial well-being of the company over the course of several years. Nine years of records is a reasonable time frame.

Gi & Do has not substantiated objections to RPD Nos. 1-19.

b. RPD Nos. 20-24

Gi & Do appears to contend that RPD Nos. 20-24 are moot because Chung provided a special interrogatory response listing the identity and contact information of employees which Gi & Do laid off from 2016 to 2019. (Florence Decl. ¶ 3, Ex. 1.) This argument is, of course, unavailing. Among other things, this response to a special interrogatory does not moot this motion because Plaintiff is seeking documents concerning these layoffs.

Gi & Do contends that the information sought by these RPDs is irrelevant and unlikely to lead to admissible evidence because this information predates Plaintiff’s termination. The Court again disagrees. To undermine Gi & Do’s asserted reason for terminating Plaintiff, Plaintiff may need to show that prior downturns in the company’s financial condition did not precipitate terminations of other employees.

Finally, Gi & Do claims that the requested information violates the constitutional right of privacy of these laid-off workers. The Court disagrees for two reasons. First, attached to Gi & Do’s opposition brief is the aforementioned interrogatory response that lists the identities of the employees and their contact information. This public filing thwarts the asserted privacy concerns. Second, as noted ante, the information sought is relevant to Plaintiff’s claims because the existence of the laid-off workers and examination of those workers may indicate whether Gi & Do’s asserted reason for terminating Plaintiff was pretextual. For this reason, Plaintiff’s need for this information trumps the employees’ privacy concerns.

Gi & Do have not substantiated objections to RPD Nos. 20-24.

3. Sanctions

Plaintiff requests monetary sanctions against Gi & Do and its counsel in the amount of $4,060. The Court agrees that Plaintiff is entitled to sanctions because Gi & Do unsuccessfully opposed this motion (CCP § 2031.310(h)) but finds that the amount requested is unreasonable. Specifically, a $400 hourly billing rate and 10 billable hours are too high for this straight-forward motion to compel further. Plaintiff’s request for monetary sanctions against Gi & Do and its counsel is GRANTED in the reduced amount of $1,060 ($200 x 5 hours, plus $60 filing fee).

4. Conclusion

Plaintiff’s motion to compel Gi & Do to provide further responses to her RPD, Set Two, Nos. 1-24 is GRANTED. Gi & Do must provide further responses and documents to these RPDs within 30 days of notice of this order.

Plaintiff’s request for monetary sanctions against Gi & Do and its counsel is GRANTED in the amount of $1,060. Gi & Do must pay these sanctions within 30 days of notice of this order.

B. SI Motion against Gi & Do

Plaintiff moves to compel Gi & Do to provide further responses to Plaintiff’s SI, Set Two, Nos. 69-71, 77-78, 80-81, 83-84, 86-87, 89-90, 109-10, and 118-19. Plaintiff also requests monetary sanctions against Gi & Do and its counsel in the amount of $4,860.

Gi & Do’s responses to these SIs consist mostly of objections. Those objections include overbreadth, vagueness, and irrelevancy. Gi & Do bears the burden of justifying these objections.

1. SI No. 69

SI No. 69 requests the salary that Gi & Do paid Chung in 2015.

Gi & Do argues that SI No. 69 violates Civil Code section 3295(c). The Court has evaluated and rejected this argument ante.

Gi & Do also argues that SI No. 69 is irrelevant and will not lead to discovery of any relevant information. The Court disagrees. As Plaintiff explains, Gi & Do has placed its financial condition at issue in this litigation and the salary received by Chung, the company’s principal, could contradict the company’s affirmative defense that Plaintiff needed to be terminated due to budgetary constraints. (See Mot. at 1.)

Gi & Do has not substantiated objections to SI No. 69.

2. SI Nos. 70-71

SI Nos. 70-71 request contact information for employees whom Gi & Do laid off in 2014 and 2015.

Gi & Do contends that this motion is moot as to SI Nos. 70-71 because the company provided supplemental responses to those SIs before the filing of this motion. Gi & Do’s evidence, however, does not corroborate this contention. Gi & Do has submitted a further supplemental response from Chung, not Gi & Do. (Florence Decl. ¶ 3, Ex. 1.) Only a supplemental response from Gi & Do would moot this portion of the motion.

Gi & Do has not substantiated objections to SI No. 70-71.

3. SI Nos. 77-78, 80-81, 83-84, 86-87, and 89-90

SI Nos. 77-78, 80-81, 83-84, 86-87, and 89-90 request a list of employees to whom Gi & Do provided a raise in 2014, 2015, 2016, 2017, and 2019 and the amount of that raise.

Gi & Do contends that these SIs request financial information that is privacy-protected. The Court partly agrees. These SIs are relevant to the extent that they ask whether the company has given raises for the years set forth and what the amount of those raises was. This information tends to rebut the company’s downsizing rationale. However, the same is not true of identifying information for the employees. This identifying information does not corroborate or impeach the company’s downsizing rationale. Plaintiff asserts in a conclusory fashion that these employees are witnesses (Mot. at 1-2) but does not explain how witnessing a raise is material to this action. As Gi & Do notes, “Plaintiff has not proffered any facts or information that an hourly employee … can testify as to the financial health of the company.” (Opp. at 4.)

For this reason, Gi & Do must provide answers to these SIs but need not provide personal identifying information of its employees.

4. SI No. 109

SI No. 109 requests the amount of money that Gi & Do claims to have saved by laying off Plaintiff.

Gi & Do argue that it has adequately responded to SI No. 109. In its response, Gi & Do asserted that it “has not done a calculation of the amount [of money saved by laying off Plaintiff] but it would include all wages, including taxes along with the employer’s share of the payroll taxes that it was legally obligated to pay.”

Gi & Do is incorrect. The Civil Discovery Act accepts three responses to an interrogatory: (1) an answer containing the information sought to be discovered, (2) an exercise of the party’s option to produce writings, and (3) an objection to the particular interrogatory. (CCP § 2030.210(a).) Gi & Do’s response does not answer Plaintiff’s interrogatory because its response does not provide the amount purportedly saved. Gi & Do has not exercised its option to produce writings as it has not specified the writings from which the answer may be derived or ascertained or provided Plaintiff with an opportunity to inspect these writings. (CCP § 2030.230.) Finally, Gi & Do has interposed objections but has not substantiated any of them in its opposition papers. Gi & Do therefore has not provided a Code-complaint response.

5. SI No. 110

SI No. 110 requests the number of people that Gi & Do employed in 2012.

Gi & Do contend that this interrogatory is irrelevant. The Court disagrees. In general, the number of Gi & Do employees is relevant to this action because the fluctuation of that number over a relevant time span may show whether the company actually experienced a downsizing that led to layoffs. A request for the total number of Gi & Do employees in 2012, although less relevant than later years, is not so remote that it is irrelevant to this case.

Gi & Do has not substantiated valid objections to SI No. 110.

6. SI Nos. 118-119

SI No. 118 requests identification of any independent contractors who performed work for Gi & Do from 2013 through the present, and SI No. 119 requests identification of anyone who has provided work / labor services for Gi & Do from 2013 through the present.

Gi & Do asserts that these interrogatories are vague and irrelevant. Gi & Do notes that “independent contractor” and “anyone who has provided work / labor services” for the company are expansive enough to include plumbers and handymen whose identities have no bearing on this case. The Court agrees. These interrogatories are overbroad and capture too much irrelevant information.

Gi & Do has substantiated an overbreadth objection to SI Nos. 118-119.

7. Sanctions

Both parties’ requests for monetary sanctions are DENIED. Both parties were partly successful in bringing and opposing this motion, respectively.

8. Conclusion

Plaintiff’s motion to compel Gi & Do to provide further responses to her second set of special interrogatories is GRANTED as to Nos. 69-71 and 109-10, GRANTED as modified as to Nos. 77-78, 80-81, 83-84, 86-87, and 89-90, and DENIED as to Nos. 118-19. Gi & Do must provide further responses within 30 days of notice of this order.

C. SI Motion against Chung

Plaintiff moves to compel Chung to provide a further response to Plaintiff’s SI, Set One, No. 2. Plaintiff also requests monetary sanctions against Chung and its counsel in the amount of $4,860.

SI No. 2 asks Chung: “To the extent that you contend that you suffer from a medical condition and/or disability, please identify all medical care providers whom you receive treatment for your disability / medical condition within five years from the present.” Chung responded with objections including relevancy and privacy protection.

As this interrogatory appears, on its face, privacy-protected and irrelevant to the subject matter of this action, Plaintiff bears the burden of showing otherwise. Plaintiff asserts that this the information sought is relevant and discoverable because Chung has placed her medical condition at issue in this case. Plaintiff notes that Chung repeatedly testified at deposition that she was unaware of the facts surrounding Plaintiff’s employment and termination because she has been receiving cancer treatment since November 2013. (See Shah Decl. Ex. 3, pp. 24, 29-30, 33.) Plaintiff claims that Chung’s medical condition serves as an affirmative defense in this action and that Plaintiff is therefore entitled to discovery of this condition to determine the defense’s veracity.

Plaintiff’s argument is unpersuasive. A party asserting a right to privacy must establish three elements: (1) a legally protected privacy interest, (2) an objectively reasonable expectation of privacy in the given circumstances, and (3) a threatened intrusion that is serious. (Williams v. Superior Court (2017) 3 Cal.5th 531, 552 (citing Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 35-40).) If these three elements are met, the court must balance the parties’ competing considerations for and against disclosure of the privacy-protected information. (Williams, supra, 3 Cal.5th at 552.) Under this balancing test, a compelling interest is required to justify an obvious invasion of an interest fundamental to personal autonomy. (Id. at 556.) Whenever lesser interests are at stake, “the strength of the countervailing interest sufficient to warrant disclosure of private information var[ies] according to the strength of the privacy interest itself, the seriousness of the invasion, and the availability of alternatives and protective measures.” (Ibid.)

Here, all three Hill elements are present. Patients have a constitutionally protected interest in information contained in their medical files. (Lantz v. Superior Court (1994) 28 Cal.App.4th 1839, 1853 disapproved on other grounds by Williams v. Superior Court (2017) 3 Cal.5th 531.) Chung, a defendant employer in a FEHA action, has an objectively reasonable expectation of privacy in her medical records. And the threatened intrusion is serious as it entails persons outside the doctor-patient relationship examining the patient’s private medical information.

Plaintiff’s asserted interest in this privacy-protected information is to understand and potentially impeach Chung’s claims that she could not recall aspects of Plaintiff’s employment due to her medical treatments. In the Court’s view, this countervailing interest is not sufficient to warrant disclosure of Chung’s medical information. For one, Chung’s medical condition is a collateral matter to this action’s primary issues — discrimination, retaliation, and harassment. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2019) ¶ 8:320 (stating that party seeking privacy-protected discovery must show that information is “directly relevant to a cause of action or defense, i.e., that it is essential to determining the truth of the matters in dispute”).) For another, the deposition transcript reflects that Chung only occasionally cited cognitive impairments from the medical treatment as reasons for her failure to recall. Explaining these failures to recall, Chung testified in some detail about when she was diagnosed with cancer (Chung Depo. p. 28) and her continual treatment of the cancer since the diagnosis (Chung Depo. p. 29). This should serve as sufficient testimony to understand Chung’s medical condition in this FEHA action.

Plaintiff’s motion to compel Chung to provide a further response to her SI, Set One, No. 2 is DENIED.

No sanctions are awarded on this motion because Plaintiff’s arguments were ponderable.