Case Number: BC465032 Hearing Date: June 02, 2014 Dept: 58

JUDGE ROLF TREU
DEPARTMENT 58
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Hearing Date: Monday, June 2, 2014
Calendar No: 3
Case Name: Garau v. Department of Industrial Relations, et al.
Case No.: BC465032
Motion: (1) Motion to Strike Answer
(2) Motion to Disqualify Counsel
(3) Motions to Compel Further Responses to Form Interrogatories and Request for Production of Documents
(4) Motion to Compel Deposition
(5) Motion to Enforce Business Records Subpoenas
Moving Party: (1)-(2) Plaintiff Olga H. Garau
(3)-(5) Defendants State of California, Department of Industrial Relations, and Division of Occupational Safety and Health
Responding Party: (1)-(2) Defendants
(3)-(5) Plaintiff
Notice: OK

Tentative Ruling: (1) Motion to strike answer is denied.

(2) Motion to disqualify counsel is denied.

(3) Motions to compel further discovery responses are granted. Further responses, without objection, to be provided within 30 days. No sanctions are awarded.

(4)-(5) Motions to compel deposition and to enforce business records subpoenas are continued to 7/18/14. The parties are ordered to meet and confer consistent with the Court’s rulings herein and on the other motions heard on this date.
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I. BACKGROUND AND PROCEDURAL HISTORY
Plaintiff, Olga H. Garau filed this action against Defendants, Department of Industrial Relations (“DIR”); State of California; and Division of Occupational Safety & Health (“DOSH”) arising out of Plaintiff’s civil service employment with DIR. Plaintiff asserts causes of action for (1) “multiple FEHA violations” – wrongful termination, disability discrimination, and retaliation; (2) “breach of statutory duty (multiple code sections)”; and (3) breach of contract. On 6/22/12, DIR filed a special motion to strike and a demurrer. On 6/25/12, DIR filed a notice of errata indicating that the memorandum of points and authorities to the demurrer was erroneously omitted. On 7/10/12, defaults were entered against the State and DOSH.

Prior to the hearing on DIR’s special motion to strike and demurrer, the Court provided a tentative ruling on the merits of the motions. On 7/25/12, the Court ordered the motions off-calendar as moot in light of the State’s default; Plaintiff requested the entry of default against DIR which was entered.

On 8/9/12, Defendants filed an ex parte application to set aside DIR’s default and to shorten time on a motion for relief as to State and DOSH’s defaults. The Court denied the ex parte applications and permitted Defendants to file them as regularly noticed motions. Defendants filed the motions on the same day. On 10/4/12, the Court granted Defendants’ motions for relief from default and to set aside default. Defendants filed a demurrer and special motion to strike on the same day.

On 10/31/12, Plaintiff filed a motion for reconsideration as to the Court’s 10/4/12 order and a motion to strike Defendants’ filings.On 11/27/12, the Court denied Plaintiff’s motion for reconsideration and motion to strike, denied Defendants’ special motion to strike, and sustained Defendant’s demurrer to the 2nd and 3rd COAs with leave to amend. The parties had submitted on the tentative ruling and waived further notice. M.O. dated 11/27/12.

On 12/7/12, Defendants filed an answer to the 1st COA in the Complaint. On 1/25/13, the Court stayed this action pending final judgment in an unrelated case filed by Plaintiff (Case No. BC388541) against DIR, asserting FEHA claims and related causes of action arising out of the denial of a promotion to Plaintiff. On 3/27/14, the Court lifted the discovery stay, and set trial for 1/12/15 and FSC for 1/8/15.

II. MOTION TO STRIKE ANSWER
Pursuant to CCP § 435 et seq., Plaintiff moves to strike Defendants’ answer by challenging DIR’s Office of the Director – Legal Unit (“OD Legal”) representation of Defendants pursuant to Gov’t Code 955.4(b) which states: “The Attorney General shall defend all actions on claims against the state.”

1. Timeliness
Preliminarily, Defendants correctly note that this motion is untimely. Plaintiff’s motion to strike must be served and filed within 30 days after service of Defendants’ answer. See CCP §§ 432.10, 435(b)(1), 436. Defendants answer was filed on 12/7/12, and even taking into account the stay from 1/25/13 to 3/27/14, Plaintiff’s motion to strike filed on 5/8/14 is grossly untimely.

Plaintiff correctly notes that the Court has discretion to rule upon a motion to strike at any time. CCP § 436. However, the Court declines to exercise this discretion, especially where the Court has previously addressed Plaintiff’s challenge to the propriety of OD Legal’s representation of Defendants (though based on Gov’t Code § 11040 et seq.). Plaintiff also argued that she was not given notice of the Court’s 10/27/12 ruling on the demurrer, citing to CCP § 664.5. Reply [Strike] p. 2:1-2. However, CCP § 664.5 concerns the entry of judgment and is inapposite; and all parties notably waived notice of the Court’s 10/27/12 ruling (see M.O. dated 10/27/12).

III. MOTION TO DISQUALIFY COUNSEL
Plaintiff moves to disqualify OD Legal’s representation of Defendants. Disqualification is a drastic course of action and implicates important interests of the right to choose counsel, the attorney’s interest in representing a client, the financial burden of replacing a disqualified attorney, and tactical abuse that may underlie the motion. Rousch v. Seagate Technology, LLC (2007) 150 Cal.App.4th 210, 218-19.

1. Gov’t Code § 955.4
Plaintiff’s motion to disqualify is largely duplicative of the motion to strike with respect to the parties’ analysis of Gov’t Code § 955.4.

The Court notes that Plaintiff has failed to harmonize Gov’t Code § 955.4(b) with the other statutory provisions previously addressed by the Court. See Chatsky and Associates v. Superior Court (2004) 117 Cal.App.4th 873, 876 (stating that the goal of statutory interpretation of two seemingly inconsistent statutes is to harmonize the law and avoid an interpretation that requires one statute to be ignored).

When the broad definition of “state” is considered (see Gov’t Code § 940.6 (defining “state” as the State and any office, department, division, bureau, board, commission or agency)), Gov’t Code § 955.4(b) is substantively identical to Gov’t Code § 11042 (prohibiting a state agency from employing legal counsel other than the Attorney General). The Court’s 10/4/12 and 10/27/12 rulings concluded that OD Legal was authorized to represent Defendants based on the Court’s analysis of Gov’t Code § 11041(a) and Labor Code §§ 54.5 and 119(a), effectively applying an exemption to permit OD Legal’s representation. Under the circumstances of this case, there is no reason why a different result occurs under Gov’t Code § 955.4(b).

Even if Gov’t Code § 955.4(b) were in conflict with the other statutory provisions previously addressed by the Court, the Court would find that the specific exemptions in the other statutory provisions would control over the general statutes mandating the Attorney General’s representation. See DeJung v. Superior Court (2008) 169 Cal.App.4th 533, 546. Therefore, the motion to strike is denied.

Lastly, the Court notes that Defendants have argued that Gov’t Code § 955.4 does not apply to Plaintiff’s action because it is part of the Government Claims Act (Gov’t Code § 810 et seq.). However, that Plaintiff’s action is not subject to the claims presentation requirement (see Gov’t Code § 900 et seq.) does not determine whether Gov’t Code § 955.4 applies.

2. Other Issues
The motion to disqualify otherwise only asserts that Plaintiff is an employee of Defendants which results in irreconcilable conflicts of interest (Mot’n [Disqualify] p. 2:6-7; but see Reply [Disqualify] p. 7:26-8:2 (asserting that the reason for disqualification is not conflicts of interest but unauthorized representation)). Plaintiff fails to cite to any authority to support this argument. Cf. Koo v. Rubio’s Restaurants, Inc. (2003) 109 Cal.App.4th 719, 729 (placing the burden on the party seeking disqualification to establish the reasons for disqualification).

To the extent Plaintiff relies on Labor Code § 3762(c) for disqualification, the Court notes that this statute concerns the prohibition of disclosure of certain medical information to an employer by an insurer or administrators for an employee’s workers’ compensation claim. Plaintiff fails to establish how this statute otherwise generally prohibits relevant discovery in Plaintiff’s civil action. See Reply [Disqualify] p. 8:3-5. Additionally, the only competent evidence submitted indicates that OD Legal is not involved in the administration of Plaintiff’s workers’ compensation claim. See Lee Decl. [Opp’n [Disqualify]] ¶¶ 6-7. Therefore, Plainitiff fails to establish that Labor Code § 3762(c) applies in this action.

Therefore, the motion to disqualify is denied.

IV. MOTIONS TO COMPEL FURTHER DISCOVERY RESPONSES
Defendants have moved to compel Plaintiff to provide further responses to employment form interrogatories (FI Nos. 200.3-200.5, 202.1-202.2, 204.1-204.5, 207.2, 208.1-208.2, 209.1, 210.1-21.04, 210.6, 212.1-212.6, 213.1-213.2, and 215.1-215.2) and requests for production of documents (RPD Nos. 1-21, 23-33, and 37-53) pursuant to CCP §§ 2030.300 and 2031.310.

1. Error in Attached Exhibits
Preliminarily, the Court notes that Defendants’ motion as to the RPDs erroneously attaches the employment form interrogatories and Plaintiff’s responses thereto. See Bacon Decl. [RPD Mot’n] ¶¶ 2-3, Exs. 1-2. Nevertheless, Defendants’ separate statement lays out Defendants’ RPDs at issue and Plaintiff’s responses thereto. Additionally, Plaintiff’s opposition does not raise this issue and it appears that Plaintiff has not been prejudiced by this error.

2. Meet and Confer (and Objections)
Plaintiff’s oppositions (and accompanying objections) focused largely on disputing Defendants’ assertions concerning the parties’ conduct. These issues were largely irrelevant to the discovery motions and were not considered, except that the Court notes that they establish the parties’ compliance with the meet and confer requirements under these motions. That the parties evidently could not agrees as to their positions does not render the meet and confer efforts insufficient.

3. Merits
Defendants’ FIs seeks information pertaining to Plaintiff’s employment, Plaintiff’s claim of disability discrimination, Plaintiff’s complaints against Defendants, and Plaintiff’s damages. Defendants’ RPDs requests documents pertaining to Plaintiff’s claims in this action, Plaintiff’s complaints against Defendants, and Plaintiff’s damages. In response, Plaintiff only submitted objections.

Defendants’ discovery is directed at the basic facts of Plaintiff’s action which concerns alleged denial of medical treatment (Complaint ¶¶ 14), failure to accommodate Plaintiff’s work restrictions (id. ¶¶ 15-16), her placement on total temporary disability status (id. ¶ 19), and the failure to pay Plaintiff employment benefits (id. ¶¶ 18, 20-21). This establishes good cause for Defendants’ discovery.

Plaintiff’s objected on the ground that a discovery stay has not been lifted pursuant to a notice of ruling on the special motion strike (CCP § 425.16(g)). However, this argument fails because Plaintiff submitted on the tentative ruling and waived notice. See M.O. dated 10/27/12. To the extent Plaintiff argues that no waiver was made pursuant to CCP § 472b, the Court notes that no parties appeared for the 10/27/12 hearing having submitted on the Court’s tentative ruling. This is a waiver that was noted in the Court’s minute order.

Plaintiff objected on the ground that Defendants are in default because they failed to answer the statement of damages. However, as explained above in the Court’s ruling on Plaintiff’s motion to strike, the statement of damages is not an amendment that requires an answer.

Plaintiff asserts numerous other objections, all of which Plaintiff has failed to establish are warranted or that completely explains Plaintiff’s complete refusal to provide any substantive responses. See CCP §§ 2030.240, 2031.240. Plaintiff’s relevancy, vagueness, and equally available objections are not proper as to the entirety of Defendants’ discovery. Indeed, as to the equally available argument, Plaintiff seems to indicate that Defendants should access her workers’ compensation claims file (see, e.g., Opp’n [RPDs] p. 6:5-8) which is inconsistent with Plaintiff’s argument based on Labor Code § 3762(c).

Therefore, Defendants’ motions to compel further responses to the employment form interrogatories and requests for production of documents are granted.

4. Sanctions
Defendants have requested sanctions against Plaintiff. The Court declines to award sanctions at this time. Although the Court has rejected Plaintiff’s arguments concerning a discovery stay, notice, and Defendants’ purported default; Plaintiff did not assert these arguments frivolously. Therefore, other circumstances make the imposition of sanctions unjust. CCP §§ 2030.300(d), 2031.310(h).

V. PLAINTIFF’S DEPOSITION

1. Motion to Compel Deposition
Pursuant to CCP § 2025.450, Defendants move to compel Plaintiff’s deposition. Defendants submit that despite noticing Plaintiff’s deposition on 3/27/14 (Bacon Decl. [Depo.] ¶ 2, Ex. A) and 4/15/14 (id. ¶ 7, Ex. H), Plaintiff submitted objections to the deposition on 4/7/14 (id. ¶ 5, Ex. E) and 4/23/14 (id. ¶ 8, Ex. I). Defendants argue that Plaintiff’s objections are without merit.

In opposition, Plaintiff argues that she was not provided sufficient notice of Defendants’ ex parte application to shorten time on the hearing on this motion (which the Court granted on 5/21/14). See Garau Decl. [Opp’n [SDT]] ¶ 4, 8-9. The Court concludes that Defendants’ ex parte notice was sufficient, and Plaintiff’s declaration is consistent with Defendants’ counsel ex parte application. See Bacon Decl. [5/21/14 Ex Parte] ¶ 13.

Plaintiff’s opposition fails to justify any of the objections asserted by her. To the extent Plaintiff objected based on Penal Code § 632, this statute applies to eavesdropping or recording confidential communications without consent. However, Defendants’ noticed videotaped deposition is authorized by statute. See CCP § 2025.220(a)(5). Plaintiff’s other objections are based on arguments concerning a discovery stay, notice, and Defendants’ purported default; all of which are without merits as discussed above.

2. Motion to Enforce Business Records Subpoenas
Pursuant to CCP § 1987.1, Defendants move to enforce business records subpoenas which seek to obtain Plaintiff’s medical records from various health care providers who have treated Plaintiff. See Bacon Decl. [SDT] ¶ 3; Riffey Decl. ¶ 4, Ex. 2.

In opposition, Plaintiff argues that the deposition officer, Mobile Copy Service, is not a proper deposition officer. See CCP § 2020.420; Bus. & Prof. Code § 22450. The Court disagrees. A deposition officer must be registered by the county clerk of the county in which he or she resides or has his or her principal place of business and in which he or she maintains a ranch office. Bus. & Prof. Code § 22450. The declaration of Linda Riffey meets these requirements. Riffey Decl. ¶¶ 2-3. Plaintiff argues that Ms. Riffey’s declaration is not credible because Mobile Copy Service maintains a Long Beach branch office under an associated company by the same owners (Garau Decl. [SDT] ¶ 3, Ex. 12 ). However, Plaintiff’s evidence concerns a different entity, Dynamic Imaging, which appears to provide large format storage. This does not dispute Ms. Riffey’s credibility or Mobile Copy Service’s compliance with the deposition officer statutes. See CCP § 2020.010(a)(3); see also CCP § 1985.3.

However, the Court notes that Plaintiff’s opposition also includes a draft motion to quash deposition subpoenas (Opp’n [SDT]) Exs. 5-6), which has been reserved for hearing in this Court for 7/18/14 and asserts that the subpoenas are procedurally defective.

3. Continuance
Because Defendants’ motion to enforce the business records subpoenas seek relevant medical records prior to Plaintiff’s deposition (Mot’n [SDT]) p. 3:12-13), the Court finds good cause to continue the hearing on the motion to compel deposition and the motion to enforce business records subpoenas to 7/18/14, to be heard concurrently with Plaintiff’s reserved motion to quash. Nevertheless, the Court orders the parties to meet and confer regarding these motions in light of the Court’s rulings herein and on other motions this date.