2013-00147371-CU-OE

Suzanne M. Ryan vs. Dignity Health

Nature of Proceeding:      Motion to Compel Further Responses to Request for Admissions

Filed By:   Neilson, Kimberly D.

Plaintiff Suzanne Ryan’s motion to compel further responses to requests for
admissions is granted, as set forth below.

In this putative wage and hour class action, Plaintiff alleges that Defendant Dignity
Health improperly paid registered nurses for failures to provide meal and rest periods.
Plaintiff maintains that when an employer makes premium payments to employees for  failing to provide meal/rest periods, it must pay the employee one additional hour of
pay at the employee’s “regular rate of compensation” for each day the meal/rest/period
is not provided.  Plaintiff alleges that Defendant uses an improper methodology to
make the premium payments.

Plaintiff propounded requests for admissions asking Defendant to admit that the facts
necessary to determine whether Defendant paid the correct rate to Plaintiff and
putative class members are contained in Defendant’s records (nos. 1 and 5)  Request
15 asked Defendant to admit that the number of nurses who received at least one
payment for the breaks since July 27, 2009 meets the numerosity requirements for
class actions, and Request 16 asked Defendant to admit that there is no need to
speak to individual nurses to determine whether Defendant correctly calculated the
payment.

Defendant interposed a number of objections and then denied the request with the
following response:

“Deny because Defendant often paid amounts when they were not legally owed
because it often paid amounts even when they were not due, such as when meal and
rest periods were ‘provided’ as that term is utilized in Labor Code section 226.7.  Thus
each payment must be individually examined and investigated to determine if it was
legally owed.  Further as determined in the Cherin decision involving Plaintiff and her
counsel, an individualized employee-by employee, day-by-day, and unit-by-unit
assessment would be necessary for over 32,000 employees to determine whether the
employees were eligible for meal and rest periods and were provided meal and rest
periods.”

At the outset, the Court rejects Defendant’s contention that Plaintiff is not really
seeking to compel further responses but instead seeking to have the truth of the
matters in the requests deemed admitted.  Plaintiff is quite clear that she is seeking
further responses that are not qualified denials and that do not contain improper
objections.

The motion is granted.  The Code specifically allows for a motion for further responses
based on the contention that responses contain objections that lack merit.  (E.g., CCP
§ 2033.290(a)(2).)  In such a circumstance, the party asserting the objection obviously
has the burden to justify the objection.  (Fairmont Ins. Co. v. Superior Court (2000) 22
Cal.4th 245, 255 [citing Coy v. Superior Court (1962) 58 Cal.2d 220-221].)  Plaintiff is
correct that the responses contain objections that lack merit.  Indeed, in each of the
four subject responses, Defendant objected to the requests on the basis that the
requests were vague, ambiguous, overbroad, burdensome, oppressive, called for legal
conclusions and on the basis that Plaintiff’s claim was previously litigated in a class
action in San Francisco County Superior Court.  Defendant makes no attempt to justify
any of these objections is its opposition and they are overruled.  Defendant must
provide further responses that remove the objections.

In addition, Defendant must provide a further response either admitting the request or
denying the request without the qualification currently existing in the responses which
was quoted below. Indeed, CCP § 2033.220(b)(2) provides that a party may “deny so
much of the matter involved in the request as untrue” which must be read in
conjunction with the requirement that the answer be “as complete and straightforward
as the information reasonably available to the responding party permits.”  (CCP §
2033.220(a).)  The current responses do not comport with these requirements.
Indeed, for example, requests nos. 1 and 5 asked Defendant to admit that it has the
facts necessary to determine whether it paid Plaintiff and other registered nurses the
correct rate for meal and rest periods.  While the response appears to deny the
request, the qualification provided renders the denial less than straightforward and as
correctly pointed out in actuality shows that Defendant is not responding to the
question.  Indeed, the denial provides an explanation that has nothing to do with
whether Defendant in fact has the records to determine whether Plaintiff was correctly
paid.  Instead the denial addresses whether any payment was legally owed, and
whether an individual examination of each nurse’s situation is required a matter which
Plaintiff did not ask Defendant to admit in requests nos. 1 and 5.  Denials must be
unequivocal and the denials to requests nos. 1 and 5, as currently phrased, are not.  (
American Federation of State, County & Municipal Employees v. Metropolitan Water
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District of Southern California (2005) 126 Cal.App.4   247, 268.)  While reasonable
qualifications on a denial may be permissible, Defendant’s qualifications render the
denials to requests 1 and 5 essentially nonresponsive and a further response in
compliance with CCP § 2033.220(a) is required.

The result is the same with respect to Requests 15 and 16.  These requests asked
Defendant to admit the number of nurses who received at least one payment for the
breaks since July 27, 2009 meets the numerosity requirements for class actions and
that there is no need to speak to individual nurses to determine whether Defendant
correctly calculated the payment.  The denials are qualified again in such a manner
that show that Defendant is not responding to the question, as its denial is again
qualified by a statement regarding whether a payment was legally owed and whether
each nurse’s situation must be individually examined.  Again, Plaintiff asked Defendant
to admit whether the number of nurses meets the numerosity requirements for a class
action, or whether there is a need to speak to individual nurses to determine whether
Defendant correctly calculated payments.  Plaintiff did not, as Defendant’s denials
suggest, ask Defendant to admit whether a payment was legally owed or whether
Defendant would have to individually examine each nurse’s situation.  Defendant’s
denials are not unequivocal and further responses are required.

As a result, the motion is granted.  No later than June 13, 2014, Defendant shall
provide further verified responses to Plaintiff’s requests for admissions nos. 1, 5, 15,
and 16 as set forth above.

The minute order is effective immediately.  No formal order pursuant to CRC Rule
3.1312 or other notice is required.

Item   11    2013-00147371-CU-OE

Suzanne M. Ryan vs. Dignity Health

Nature of Proceeding:      Motion to Compel Further Responses to Request for Production of

Filed By:   Neilson, Kimberly D. Plaintiff maintains that when an employer makes premium payments to employees for
failing to provide meal/rest periods, it must pay the employee one additional hour of
pay at the employee’s “regular rate of compensation” for each day the meal/rest/period
is not provided.  Plaintiff alleges that Defendant uses an improper methodology to
make the premium payments.  The instant motion involves Plaintiff’s request for
production nos. 5 and 9.  Request 5 asked Defendant to produce documents showing
the base hourly compensation rate for each of Defendant’s registered nurses
employed in California since June 27, 2009, that were paid at least one meal or rest
period payment.  Request 9 asked Defendant to produce documents showing each
payment made for a missed meal/rest period “including the employee’s name (or other
unique identifier for the employee), date, type of premium payment, the hourly rate
used for the premium payment, the base hourly rate in effect, any shift premium or
additional payment for hours worked (for example, sift differentials for night, weekend
or callback pay, Charge Nurse pay, education and non-discretionary bonus
compensation) for the particular shift, to for each of Defendant’s Registered Nurses at
any time since June 27, 2009.”  Defendant interposed a number of objections to the
requests.  This motion followed.

Defendant argues that the two requests are overbroad, unduly burdensome and
oppressive given that as phrased, the requests seek documents regarding hourly rates
and payments made to each registered nurse during the class period and there are
over 10,000 such individuals.  Discovery is not warranted where the utility of the
information sought is not commensurate with the burden of its production.  (Columbia
Broadcasting System, Inc. v. Superior Court (1968) 263 Cal.App.2d 12, 19.)
Defendants reasons that the requested information is irrelevant because the fact it
made a premium payment for a missed meal break does not show it violated the law
by failing to provide a meal break but only that it made a payment under its “generous”
policy to provide a premium payment when one is requested.  The Court rejects this
argument as Defendant has made no factual showing regarding any burden in
responding to the discovery.  For example, Defendant did not submit a declaration
showing the amount of time would be required to locate and produce the requested
documents.  (Cf. Mead Reinsurance Co. v. Superior Court (1986) 188 Cal.App.3d 313,
318 [oppression objection upheld where declarations showed 13,000 claims would
have to be reviewed, requiring 5 claims adjusters working full time for over 5 weeks
each].)

The Court also rejects Defendant’s objections on the basis that the requests are
harassing and unwarranted because Plaintiff’s counsel litigated similar claims in a
class action in San Francisco County Superior Court (Cherin Action).  Even assuming
Defendant is correct that it produced “hundreds” of documents showing premium
payments to putative class members and individual putative class members’ pay rates,
this is not a basis upon which to refuse to respond to discovery in this action and
Defendant provides no authority to the contrary.  Further to the extent that Defendant
argues that the requested documents rely upon Plaintiff’s misinterpretation of the state
of the law with respect to when an employer violates Labor Code § 226.7 (e.g. § 226.7
is only violated when there is a failure to provided meal/rest breaks, not when an
employer incorrectly calculates a premium payment for missed meal/rest breaks), such
contention simply goes to the merits of the instant action and does not provide any
basis to refuse to respond to discovery.

However, the Court agrees with Defendant, that as currently phrased, Request Nos. 5
and 9 improperly seek private financial information from Defendant’s current and  former employees.  Specifically, Plaintiff seeks personnel and compensation
information regarding all employees in the putative class.  “The public interest in
preserving confidential, personnel information generally outweighs a private litigant’s
interest in obtaining that information.”  (Life Technologies Corp. v. Superior Court
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(2011) 197 Cal.App.4   640, 652.)  “A showing of relevancy may be enough to cause
the court to balance the compelling public need for discovery against the fundamental
right of privacy. [citation omitted] However, the balance will favor privacy for
confidential information in third party personnel files unless the litigant can show a
compelling need for the particular documents and that the information cannot be
reasonably obtained through depositions or from nonconfidential sources.”  (Id.
[emphasis in original].)

Here, the Court agrees that Plaintiff has failed to show the requisite compelling need.
Plaintiff implicitly, if not expressly, concedes that the privacy rights of the putative class
members are at issue as her counsel states that they have obtained similar records in
other cases with other defendants and that any privacy concerns can be addressed by
simply replacing identifying information with a unique identifier.  (Mot. 2:13-16.)  While
Plaintiff asserts that the documents regarding the base hourly pay and premium
payments made are required to establish her claims that Defendant did not properly
calculate the regular rate of compensation for meal/rest period premium payments.
Yet Plaintiff fails to demonstrate a compelling need for the records of every putative
class member showing every payment made to that class member from July 2009 to
present.  However, even assuming for sake of argument that Plaintiff needs all of the
requested documents to establish her claims, she has failed to show that she cannot
reasonably obtain the information through depositions or other non-confidential
sources.  Indeed, she even makes clear that she has attempted to obtain information
from Defendant regarding its pay practices through requests for admissions and that
Defendant recently agreed to provide supplemental responses to those admissions.
(Neilson Decl. ¶ 7.)  Those responses, and other more narrowly tailored written
discovery and depositions may obviate the need to seek the private personnel records.
Plaintiff’s counsel makes no showing that the information sought to be gleaned from
the requested documents cannot reasonably be obtained through other sources.

Plaintiff’s proposed solution, that the names of the employees can simply be redacted
overlooks the fact, however, that the requests as currently phrased seek private
personnel records and essentially puts the cart before the horse.  The attempt to deal
with privacy concerns through redaction of employee names is only relevant to the
extent the Court were to order disclosure.  That is, given that the requests as phrased
clearly seek private personnel records, the Court must first engage in the balancing
analysis set forth above.  The Court would only place limits on any disclosure if it first
concluded that the balance weighs in favor of disclosure.  “Even when the balance
does weigh in favor of disclosure, the scope of disclosure must be narrowly
circumscribed.”  (Harding Lawson Associates v. Superior Court (1992) 10 Cal.App.4th
7, 10.)

In addition, the requests are problematic for the additional reason that a person whose
privacy is implicated must be given notice of the requested discovery and an
opportunity to object.  ( Valley Bank of Nevada v. Superior Court (1975) 15 Cal.3d 652,
658.)  No such notice or opportunity has been provided here.

In reply, Plaintiff argues that she was not required to demonstrate any compelling need
because the requests do not seek any private or confidential personnel records, only
electronic payroll records.  However, as currently phrased, the document requests
literally seek documents from third party employee personnel files. The Court would
note that relevancy, in the context of privacy rights, appears to be governed by a more
stringent standard of “direct relevance,” apparently to prevent a searching for only
tangentially pertinent sensitive information. (See Britt v. Superior Court (1978) 20
Cal.3d 844, 860-861 & fn. 4; Weil & Brown, Cal. Practice Guide, Civil Procedure
Before Trial (1987) § 8:320, p. 8C-50.)  In any event, Plaintiff’s reply argument seems
to contradict her at least implicit concession that the privacy rights of the putative class
members are at issue as she stated in her moving papers that her counsel has
obtained similar records in other cases with other defendants and that any privacy
concerns can be addressed by simply replacing identifying information with a unique
identifier.  (Mot. 2:13-16.)

As a result, the motion is denied.  The denial is without prejudice to allow Plaintiff to
either narrow the requests to make clear that private information is not being sought,
or to attempt to obtain the requested information through depositions or non-
confidential sources.  In the event Plaintiff is unable to do so, she is free to attempt to
seek the documents again, as the Court’s analysis on privacy concerns may be
different.  Plaintiff should keep in mind the Court’s comments above, with particular
focus on the issue of notice to the employees whose records were sought.  To that
end, the Court notes that in the event Plaintiff is unable to obtain the requested
information through depositions or non-confidential sources, Plaintiff’s and Defendant’s
counsel are encouraged to meet and confer regarding the most practicable manner in
which notice might be provided.

Given the above, the Court need not address any of the other objections raised in
Defendant’s responses, though it notes that Defendant failed to discuss any objection
in its opposition papers other than the ones addressed above.

The minute order is effective immediately.  No formal order pursuant to CRC Rule
3.1312 or other notice is required.

Item   12   2013-00147371-CU-OE

Suzanne M. Ryan vs. Dignity Health

Nature of Proceeding:    Motion to Compel Further Responses to Special Interrogatories

Filed By:   Neilson, Kimberly D.

Plaintiff Suzanne Ryan’s motion to compel further responses to special interrogatories
is ruled upon as follows.

In this putative wage and hour class action, Plaintiff alleges that Defendant Dignity
Health improperly paid registered nurses for failures to provide meal and rest periods.
Plaintiff maintains that when an employer makes premium payments to employees for
failing to provide meal/rest periods, it must pay the employee one additional hour of
pay at the employee’s “regular rate of compensation” for each day the meal/rest/period
is not provided.  Plaintiff alleges that Defendant uses an improper methodology to
make the premium payments.  The instant motion involves special interrogatories 7,
12, and 13.

No. 7
Granted.  The interrogatory asked Defendant to “describe the system, whether manual
or electronic, used to calculate meal or rest period premium payments [sic] any
Registered Nurse employed in California by Defendant since June 27, 2009.”
Defendant argues that the interrogatory is unintelligible and vague and that while it has
sought to meet and confer with Plaintiff regarding the use of the term “system”,  even
proposing two possible meanings, Plaintiff failed to identify which meaning was
correct.  Here, while the term “system” is not defined, Defendant is under an obligation
to attempt to answer the interrogatory based upon what it believes that term means.
Indeed, given that Defendant has been able to suggest two proposed meanings, it is
clear that the interrogatory is not so unintelligible that it cannot provide a good faith
response. In other contexts, it has been observed that where the question is somewhat
ambiguous, but the nature of the information sought is apparent, the proper solution is
to provide an appropriate response. (See Cal. Civil Discovery Practice, § 8.54; Deyo v.
Kilbourne, (1978) 84 Cal. App. 3d 771, 783.)

Defendant does not address any other objection that was asserted in its response, for
example, its relevance, burdensome and oppression objections.  The unaddressed
objections are overruled.  A further response is required.

No. 12

Granted.  This interrogatory asked Defendant to identify witnesses with knowledge
regarding Defendant’s contentions that it properly paid its nurses for meal/rest break
premiums (name, job title, contact info and a description of information they possess).
The Court overrules Defendant’s objection that the interrogatory is overbroad,
burdensome and oppressive.  First, while Defendant argues that responding would
require it to communicate with other 10,000 putative class members, Plaintiff has
agreed that class members are not within the scope of the interrogatory.  Further,
Defendant has made no factual showing regarding the burden associated with
responding to the interrogatory.

Further, the Court overrules the relevance objection.  As it has in the other motions,
Defendant again argues that the requested information would not show that it violated
Labor Code § 226.7 because the fact it made a premium payment for a missed meal
break does not show it violated the law by failing to provide a meal break but only that
it made a payment under its “generous” policy to provide a premium payment when
one is requested.  The requested information is plainly to Plaintiff’s claims that
Defendant used an improper rate to pay registered nurses for failures to provide meal
and rest periods.  Defendant is correct that the Supreme Court has stated that it is the
failure to provide the meal and rest break that forms the 226.7 violation.  (Kirby v.
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Immoos Fir Protection, Inc. (2012) 53 Cal.4   1244, 1256-57.)  However, even so, for
example, if Plaintiff could show that Defendant failed to provide a meal/rest period in
violation of 226.7, information related to the compensation that Defendant paid its
registered nurses for missing such meal/rest periods is plainly relevant to Plaintiff’s
claim that such payments were improperly calculated.  Defendant’s argument is
nothing more than a defense to the ultimate merits of the claim.

The Court also overrules Defendant’s privacy objection.  The interrogatory is nothing
more than a standard interrogatory requesting identification of individuals with
knowledge supporting Defendant’s contentions.  The only potentially private
information sought here is contact information.  While true that there is a right to
privacy in contact information, this is no basis to resist answering the interrogatory in
its entirety.  There is no legitimate argument that the right to privacy prevents
Defendant from identifying individuals with knowledge of its contentions.  The
“disclosure of the names and addresses of potential witnesses is a routine and
essential part of pretrial discovery.”  (Puerto v. Superior Court (2008) 158 Cal.App.4th
1242, 1250.)  To the extent the interrogatory implicates privacy rights in that it requests
contact information of Defendant’s employees, Defendant may properly answer the
interrogatory here without disclosing the contact information of its employees and may
simply indicate that the identified individuals can be contacted through counsel.

To the extent that Defendant believes that the interrogatory calls for it to individually
interview managers, employees and witnesses to see whether they have knowledge of
its contentions regarding the premium payments creating an unnecessary burden, the
Court disagrees.  Defendant either does or does not have certain contentions and
there either are or are not such individuals who will support such contentions.
Defendant must identify the individuals and respond to the interrogatory.

Finally, while Defendant argues that the interrogatory seeks identification of individuals
who have knowledge of the arguments it will raise in this action thereby implicating
attorney work-product and attorney client privilege, Plaintiff is not seeking such
information in this interrogatory.  In any event, Defendant may properly assert such
objections in a further response, though it may not simply refuse to answer the
interrogatory.

No. 13

Granted.  In this interrogatory, Plaintiff asked Defendant to identify documents (by
date, format, author, recipient, and subject) supporting its contention it properly paid its
nurses for meal/rest break premiums.

Defendant’s overbroad, burdensome and oppressive objections are overruled.  Again,
Defendant has made no factual showing regarding any burden associated with
responding to this interrogatory and identifying documents it believes supports its
contentions.  While Defendant may be correct that literal compliance with the
interrogatory could involve a description of thousands and thousands of paystubs,
Defendant made no attempt whatsoever to respond to the interrogatory.  Defendant
was under an obligation to respond to the interrogatory in a complete and
straightforward manner and if it could not answer fully (e.g. because it was not feasible
to specifically identify thousands of paystubs) it was required to answer to the extent
possible.  (CCP § 2030.220(a)-(b).)  For example, it could at least attempt to identify
categories of documents as it did in its opposition and explain in its response why it is
unable to answer more fully.  Simply refusing to respond, however, was not
appropriate.

The relevance objection is overruled for the reasons set forth above.  The privacy
objection is also overruled.  An interrogatory asking for the identification of documents
does not implicate privacy rights.  (Cf. Hernandez v. Superior Court (2003) 112
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Cal.App.4   285, 293 [existence of privileged document not privileged and response to
interrogatory seeking identification of documents must identify documents even if
responding party has a right to object to demand for production].)

As a result, the motion is granted.  No later than June 13, 2014, Defendant shall             provide further verified responses to Plaintiff’s special interrogatories nos. 7, 12,  and
13 as set forth above.

The minute order is effective immediately.  No formal order pursuant to CRC Rule
3.1312 or further notice is required.