2013-00156661-CU-OE

Kimberly Granzella vs. CVS Pharmacy, Inc.

Nature of Proceeding:   Motion for Protective Order

Filed By:  Leggieri, Michael G.

Defendant CVS Pharmacy, Inc.’s and Longs Drug Stores California, LLC’s Motion for
Protective Order is granted only insofar as the Court will stay a ruling on the plaintiff’s
discovery motion, until after the hearing on Defendants’ demurrer to Deluca’s
remanded portion of the First Amended Complaint.

The Court is continuing the hearing on the demurrer to the First Amended
Complaint to August 5, 2014 .  If this date is not convenient the parties shall
meet and confer to agree on a date after August 5, 2014.

The motion to “void” the discovery that was propounded before the case was removed
to federal court on February 21, 2014 and to stay all discovery is denied.

Defendants’ Request for Judicial Notice is granted.  The Court takes judicial notice of
the United States District Court’s April 24, 2014 Order in the case entitled Kimberly
Granzella et al v CVS Pharmacy, Inc. et al. Eastern District of California Case No.
14cv00518 KJM (DAD), Ex A to RJN.

“The court, for good cause shown, may make any order that justice requires see also Fairmont Ins. Co. v. Superior Court (2000) 22 Cal. 4th 245, 255. Trial courts
have broad discretion to grant relief through protective orders, including that a set of
interrogatories need not be answered, that the items or categories of documents need
not be produced in response to a demand, or that the time to the discovery responses
be extended. CCP §§2030.090, 2031.060.

Plaintiff is a current employee of defendants.  Deluca alleges that defendants’ policy
whereby injured or ill workers are automatically terminated by a computer if they are
absent more than 45 days in a row is a violation of the Fair Employment and Housing
Act.  (FAC ¶ 9) Plaintiff alleges that she has missed work days due to illness, however
she has returned to work within 45 days and has worked consecutive hours during a
45 day period. (FAC 46) Although Deluca purports to bring this action on behalf of “all
medically/physically disabled current employees of Defendants,” (FAC para. 17) she
does not allege that she is disabled under FEHA.

Plaintiff Granzella’s claims were dismissed by the Federal Court.  The discovery at
issue was propounded before Granzella’s claims were dismissed.

The plaintiff’s discovery seeks contact information about current and former employees
who may be or were subject to the 45 day automatic termination policy.  The motion to
compel seeks an order compelling defendants to provide the employees’ contact
information.

The only portion of the First Amended Complaint remaining before this Court is
Deluca’s stand-alone request for injunctive relief, which was remanded to this court for
lack of jurisdiction based on Deluca’s lack of standing to pursue a claim for injunctive
relief. (RJN Ex. A)   The federal court judge found that Deluca’s unsubstantiated
assertions that she could be absent for more than 45 days were insufficient to support
a claim that she was in immediate danger of sustaining injury as a result of defendants’
policy.

Defendants’ pending demurrer set for July 21, 2014 is on the ground that Charlene
Deluca lacks standing to prosecute her claim for injunctive relief because her claim is
barred by collateral estoppel based on the Federal Court’s order.  Defendants’ further
contend that even if collateral estoppel did not apply, Deluca does not have standing to
bring a claim for injunctive relief. Deluca admits
she (1) has not exhausted the administrative remedies required by the Fair
Employment and Housing Act (“FEHA”), (2) is not disabled, and (3) has never been
harmed by the alleged policy underlying her request for injunctive relief.

The Court is not now ruling on the validity of the arguments made in the demurrer, or
whether ultimately plaintiff will be permitted conduct discovery to  locate a plaintiff who
has standing.  The court finds good cause to stay a ruling on plaintiff’s discovery
motion until the court rules on the demurrer.  While a pending demurrer is ordinarily
not a reason to stay discovery, when, as in this case, the federal court has already
ruled Deluca has no standing, the court will not order defendants at this time to
respond to discovery. Courts routinely stay matters where circumstances warrant.
Frieberg v City of Mission Viejo (1995) 33 Cal.App.4th 1484, 1489.  As to the discovery
implicated by this motion, a brief stay of the pending discovery is necessary to avoid
the potential waste of judicial and party resources.