2015-00188447-CU-OE

Bernard Ellis vs. Raley’s

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

Filed By: Schrick, Shaye

Defendant Raley’s Motion to Compel Responses to Requests for Production Set 2 is ruled on as follows:

Plaintiff filed this action alleging causes of action for disability discrimination, race discrimination and age discrimination arising out of his employment with Raley’s.

Defendant seeks further responses to Requests for Production, Set 1, Nos. 44 – 59.

Defendant contends Plaintiff provided untimely and unverified responses that failed to comply with the Code of Civil Procedure. Despite asserting that he “will produce” documents in response to some requests, defendant states Plaintiff has not produced any documents nor a signed verification in response to these document requests.

The Court rejects defendant’s argument that the responses were untimely. Therefore, the objections were not waived on that basis.

The responding party must serve responses to document requests within 30 days of service. Code Civ. Proc. § 2031.260(a); see also id. at §§ 1010.6(a)(4), 1013,
2016.050. Where a party fails to timely respond to interrogatories, that party waives all

objections, including claims of privilege or work product protection. Id. at § 2031.300

(a).

Raley’s served Requests for Production of Documents, Set Two, by hand on January

22, 2018. (Schrick Decl. ¶ 3, Exh. B.) As a result. Plaintiff’s responses were due 30 days later, on February 21, 2018. Code Civ. Proc. § 2031.260(a); see also id. at §§
1010.6(a)(4), 1013, 2016.050. According to the postmark on the envelope that contained the responses, the responses were not actually mailed until February 22,

2018. Defendant contends this is untimely.

In opposition, plaintiff contends the he timely served responses to the Requests for

Production on February 21, 2018. Plaintiff’s counsel confirmed with office staff that the responses were placed in the firm’s outgoing mail on February 21, 2018 and were picked up that day by a post office worker.

The service complies with CCP 1013a(3):

(3) An affidavit setting forth the exact title of the document served and filed in the cause, showing (A) the name and residence or business address of the person making the service, (B) that he or she is a resident of, or employed in, the county where the mailing occurs, (C) that he or she is over the age of 18 years and not a party to the cause, (D) that he or she is readily familiar with the business’ practice for collection and processing of correspondence for mailing with the United States Postal Service,

(E) that the correspondence would be deposited with the United States Postal Service that same day in the ordinary course of business, (F) the name and address of the person served as shown on the envelope, and the date and place of business where the correspondence was placed for deposit in the United States Postal Service, and

(G) that the envelope was sealed and placed for collection and mailing on that date following ordinary business practices. Service made pursuant to this paragraph, upon motion of a party served, shall be presumed invalid if the postal cancellation date or postage meter date on the envelope is more than one day after the date of deposit for mailing contained in the affidavit..
CCP 1013a(3) emphasis added.

Because office staff placed the sealed envelope for collection and mailing on January 21, the court finds the responses timely. The postmark is dated January 22. Only if the postmark is more than one day after the date of deposit is it presumed invalid.

Requests for Production

Nos. 44, 45, 46, 47, 48, and 58: Granted. Plaintiff agrees in the opposition to provide further responses to these requests. Plaintiff is ordered to provide further verified responses in compliance with CCP 2031.220, as well as production of documents.

Nos. 53, 54, 55, 56, 57, and 59: Granted. Plaintiff states that he has produced the documents responsive to the requests in compliance with his earlier agreement to comply. However, Plaintiff is ordered to also provide verified further responses to the requests in compliance with CCP 2031.220 and to produce all documents.

No 49:

Granted only as to plaintiff’s income, since January 1, 2010. Plaintiff shall serve further verified responses in compliance with CCP 2031.220, and to produce the documents.

This request seeks “All documents evidencing income received by you and/or your current wife since January 1, 2010.”

Plaintiff responded: “Objection, this request is overbroad, unduly burdensome as to time, and violates third party rights of privacy. Documents from January 1, 2010 until
2015 are equally accessible by defendant.”

The court overrules all objections except as to that concerning plaintiff’s wife’s income.

There is no showing that the need for disclosure of Ms. Ellis’ private financial information. Her income is not directly relevant to plaintiff’s lost wages claim. Her privacy rights outweigh defendant’s need for discovery. (Ameri-Medical Corp. v. Workers’ Comp. Appeals Bd. (1996) 42 Cal.App.4th 1260, 1287-1288.) However,

Plaintiff waived his privacy own privacy objections by placing his financial condition at issue by asserting past and future wage loss. Britt v Superior Court (1978) 20 Cal.3d 844, 852-864.

Raleys has failed to show good cause to produce plaintiff’s wife’s wage records.

A nonparty’s private information falls within a constitutionally protected zone of privacy set forth under Article I , Section 1 of California’s Constitution. (Board of Trustees v.

Superior Court (1981)119 Cal.App.3d 516, 526, 528-529; El Dorado Savings and Loan Ass’n v. Superior Court (1987) 190 Cal.App.3d 342.) The constitutional right of privacy is not absolute; it may be abridged when, but only when, there is a compelling and opposing state interest. ( Hill v. National Collegiate Athletic Assn. (1994) 8 Cal.4th 1.) And even when discovery of private information is found directly relevant to the issues of ongoing litigation, it will not be automatically allowed; there must then be a “careful balancing” of the compelling public need for discovery against the fundamental right of privacy. (Board of Trustees, 119 Cal.App.3d at 525.) Even when the balance does weigh in favor of disclosure, the scope of disclosure must be narrowly circumscribed.” (

Life Technologies, 197 Cal.App.4th at 652-53 (citing Harding Lawson Associates v. Superior Court (1992) 10 Cal.App.4th 7,10.

No. 50

Denied.

This request seeks “Tax returns for each year since January 1, 2010.”

Plaintiff responded “Objection, these forms are privileged. Documents from January 1, 2010 until 2015 are equally accessible to Defendant.”

There is no recognized federal or state constitutional right to maintain the privacy of tax returns. (See Couch v. United States (1973) 409 U.S. 322, 336-337; Deary v.

Superior Court (2001) 87 Cal. App. 4th 1072,1075, fn. 2,1077-1078). California courts, however, have interpreted state taxation statutes as creating a statutory privilege against disclosing tax returns. Although, by its language, Rev. & Tax. Code, § 19282

(prohibition against disclosure of tax returns), appears to be directed only toward administrative officers, it establishes an implied privilege against forced disclosure in civil discovery proceedings (Schnabel v. Superior Court (1993) 5 Cal. 4th 704, 718-721.) The purpose of the statute is to facilitate tax enforcement by encouraging a

taxpayer to make full and truthful declarations in his or her return, without fear that any statements will be revealed or used against him or her for other purposes. The purpose of the privilege is to encourage voluntary filing of tax returns and truthful reporting of income, and thus to facilitate tax collection. ( Webb v. Standard Oil Co. (1957) 49 Cal. 2d 509, 513). The statutory tax return privilege is not absolute. The privilege will not be upheld when (1) the circumstances indicate an intentional waiver of the privilege; (2) the gravamen of the lawsuit is inconsistent with the privilege; or (3) a public policy greater than that of the confidentiality of tax returns is involved. (

Schnabel v. Superior Court, supra, 5 Cal. 4th at p. 721.) This latter exception is narrow and applies only “when warranted by a legislatively declared public policy.” (Ibid.) A trial court has broad discretion in determining the applicability of a statutory privilege. (See National Football League Properties, Inc. v. Superior Court (1998) 65 Cal. App.
4th 100, 106-107.)

The tax returns are alleged to be relevant to plaintiff’s lost wage claim. However, the records may also contain the financial information of plaintiff’s wife. Tax records contain information other that wages and therefore the request is overbroad. The information may be obtainable in less intrusive ways such as requesting plaintiff’s W-2 forms. Thus, the Court concludes there is insufficient basis to compel production of the tax returns at this time.

No 51

Granted. Plaintiff shall serve further verified responses, without objections, and produce the documents.

This request seeks all documents related to each complaint of discrimination and/or retaliation you made against each employer you have had since January 1, 2010.

Plaintiff objected on the basis of “overbroad, and equally accessible by defendant, and violates Ellis’ right to privacy without any probative value as to future employers”.

The objections are overruled. Information about other claims of discrimination may lead to admissible evidence in this case. Plaintiff has not established that complaints made to other employers are protected by his constitutional right of privacy.

No 52

Granted. Plaintiff shall serve further verified responses, without objections, and produce the documents.

This request seeks documents related to each request for reasonable accommodation you have made to each employer you have had since January 1, 2010. Plaintiff objected “this request is overbroad, and equally accessible by defendant and violates Ellis’ right to privacy without any probative value as to future employers.”

The objections are overruled. Plaintiff waived his privacy objections by placing his physical condition at issue. Britt v Superior Court (1978) 20 Cal.3d 844, 852-864.

No 58

Denied.
“All documents related to your contention that you cannot read and/or cannot read well.” Plaintiff responded “Objection, this Request for Production is solely intended to embarrass and annoy Plaintiff.

Defendant contends that this information is relevant because plaintiff’s counsel has said throughout the litigation that plaintiff is unable to read or has difficulty reading.

Defendant has not articulated how this discovery is relevant to the issues in this case, therefore no good cause is shown.

Where granted, plaintiff is ordered to provide further verified responses, without objections, indicating the description of all relevant documents, and to produce all documents, on or before May 4, 2018.

The minute order is effective immediately. No formal order pursuant to CRC Rule

3.1312 or further notice is required.