Case Number: BC516582    Hearing Date: October 06, 2014    Dept: 32

CASE NAME: Christopher Rodriguez v. Serra Community Medical Center, et al.
CASE NO.: BC516582
HEARING DATE: 10/06/14
DEPARTMENT: 32
SUBJECT: (1) Plaintiff’s Motion to Compel Further Responses to Form Interrogatories-Employment (Set One)
(2) Plaintiff’s Motion to Compel Further Responses to Request for Production (Set One)
(3) Defendant’s Motion for an Order Compelling Further Responses to Request for Production (Set One)
(4) Defendant’s Motion for an Order Compelling Further Responses to Employment Law Form Interrogatories (Set One)
MOVING PARTY: (1)-(2) Plaintiff Christopher Rodriguez; (3)-(4) Defendant Serra Community Medical Clinic, Inc. dba Maximed Occupational Medical Center
RESP. PARTY: (1)-(2) Defendant Serra Community Medical Clinic, Inc. dba Maximed Occupational Medical Center; (3)-(4) Plaintiff Christopher Rodriguez

TENTATIVE RULING

Plaintiff’s Motion to Compel Further Responses to Form Interrogatories-Employment (Set One) GRANTED. Defendant to produce a further response to FI 201.5 and also verifications for all responses to FI 201.5. Plaintiff’s request for monetary sanctions is DENIED.

Plaintiff’s Motion to Compel Further Responses to RFPs GRANTED as to RFPs 40, 41, 41(a), 42, 43-44, 46, and 49, subject to the parties executing a confidentiality agreement. DENIED as to RFPs 11, 21, 22, 24, 38, 39, 45, 48,. Defendant to produce verifications for all responses and supplemental responses to the RFPs. Plaintiff’s request for monetary sanctions is DENIED.

Defendant’s Motion for an Order Compelling Further Responses to Request for Production (Set One) GRANTED as to RFPs 1-30. Defendant’s request for monetary sanctions GRANTED against Plaintiff in the reduced amount of $1,860.

Defendant’s Motion for an Order Compelling Further Responses to Employment Law Form Interrogatories (Set One) GRANTED in part. Plaintiff to provide a further response to FI 217.1(b) and (d) for RFAs 5 and 6, and for FI 217.1(d) for RFAs 7-9, 11-12, 16, 18. The motion is DENIED as to subpart FI 217.1(c). Defendant’s request for monetary sanctions GRANTED against Plaintiff in the reduced amount of $1,260.

ANALYSIS

Plaintiff’s Motion to Compel Further Responses to FIs

Meet and Confer / Separate Statement

Plaintiff submits an unsigned and undated meet and confer letter, addressed to Defendant’s counsel, which asserts Plaintiff’s reasons that a further response to FI 201.5 is required. (Mot. Exh. 3.) However, it is not clear when Plaintiff served this meet and confer letter. Also, as Plaintiff concedes, before the motion was filed Defendant served first and second supplemental responses to FI 201.5 which are not addressed in Plaintiff’s meet and confer or separate statement. (Cantor Decl. ¶ 4.) It also appears that Plaintiff has not accurately set forth the text of the original response to FI 201.5 in his separate statement. (See Oppo. Exh. A.)

Based on the foregoing, the motion is procedurally defective. Nevertheless, it appears that Plaintiff addressed the substance of Defendant’s privacy objection in meet and confer. As Defendant has responded on the merits, it appears further meet and confer or briefing are not required. Accordingly, the Court reaches the merits.

FI 201.5

This FI asks: “Was any Person hired to replace the EMPLOYEE after the EMPLOYEE’S TERMINATION or demotion? If so, state the PERSON’S name, job title, qualifications, ADDRESS and telephone number, and the date the PERSON was hired.” In the response and supplemental responses, Defendant stated that it would provide the subsequent employees’ contact information only with their approval. Defendant then stated that the employees could be reached through Defendant’s counsel. Defendant then provided a PO Box address for employee Ivette Giraldo.

Here, the two employees identified by Defendant have a privacy interest in their job qualifications and contact information. “When the right to discovery conflicts with a privileged right, the court is required to carefully balance the right of privacy with the need for discovery.” (Tylo v. Superior Court (1997) 55 Cal.App.4th 1379, 1387.) Discovery may be compelled only upon a showing of a compelling need. (Id.)

Plaintiff has alleged that he was wrongfully terminated and retaliated against for demanding payment of overtime wages. The qualifications of his successors could be relevant circumstantial evidence as to whether Defendant had a legitimate, non-retaliatory reason to terminate Plaintiff. The successors could also be percipient witnesses to Plaintiff’s claims for unpaid wages and wrongful termination. Although disclosure may invade their privacy, there is generally no protection for the identity, address, and phone numbers of percipient witnesses. (Puerto v. Superior Court (2008) 158 Cal.App.4th 1242, 1251-1252.) Finally, by providing contact information for Giraldo, Defendant has undercut its privacy objection.

The motion is GRANTED.

Verifications

In reply, Plaintiff argues that Defendant’s supplemental responses are not verified. This argument was not raised in the moving papers. Also, the first supplemental response appears to be verified. (Oppo. Exh. 2.) However, since verifications are clearly required, the Court also orders to Defendant to produce verifications for all of its responses to FI 201.5.

Monetary Sanctions

Given the procedural defects in Plaintiff’s meet and confer and separate statement, the Court declines to award sanctions to Plaintiff.

Plaintiff’s Motion to Compel Further Responses to RFPs

The moving party on a motion to compel further responses to RFPs must submit “specific facts showing good cause justifying the discovery sought by the inspection demand.” (CCP § 2031.310(b)(1).) If the moving party has shown good cause for the RFPs, the burden is on the objecting party to justify the objections. (Kirkland v. Sup.Ct (2002) 95 Cal. App.4th 92, 98.)

Meet and Confer

Plaintiff submits an unsigned and undated meet and confer letter, addressed to Defendant’s counsel, which asserts Plaintiff’s reasons that further responses are required for the RFPs at issue. (Mot. Exh. 3.) However, it is not clear when Plaintiff served this meet and confer letter. Also, as Plaintiff concedes, Defendant served first and second supplemental responses to the RFPs which are not addressed in Plaintiff’s meet and confer or separate statement. (Cantor Decl. ¶ 4.)

Based on the foregoing, the motion is procedurally defective. Insofar as it appears further meet and confer could have resolved the motion, or that the defects in the separate statement have prejudiced Defendant, the motion will be denied as to specific RFPs. The Court discusses these procedural defects further with respect to the RFPs at issue below.

RFPs 11, 21, 22

In the responses or supplemental responses to these RFPs, Defendant stated that, after a diligent search and reasonable inquiry, Defendant could not locate responsive documents. Defendant then indicated the reason it could not produce documents, such as “none has ever existed.” (Oppo. Exh. A, C-D.) These responses comply with CCP § 2031.230 for a statement of inability to comply. The motion is DENIED as to these RFPs.

RFP 24

This RFP asks for all documents that refer or relate to claims, lawsuits, or DLSE, DFEH or EEOC charges filed against Defendant at any location Plaintiff was employed from March 2011 to the present by any employee in connection with allegations of failure to pay wages and/or retaliation for complaining about Labor Code violations or unpaid wages. Defendant objected that the RFP is overbroad, irrelevant, and seeks public records available to Plaintiff. Defendant also stated in the response and supplemental responses that it has no responsive documents.

This RFP is overbroad because Plaintiff has not shown a need for “all documents” related to lawsuits filed by other employees. Also, Defendant has indicated that it is unable to comply because no other employees have sued Defendant for Labor Code violations. In reply, Plaintiff has not asserted any additional argument in light of the supplemental responses.

The motion is DENIED as to RFP 24.

RFPs 38, 39, 45, 48

In its supplemental responses to these RFPs, Defendant stated, in effect, that after a diligent search and reasonably inquiry, Defendant has not located any documents responsive to these RFPs. Defendant stated that it was unable to comply because the documents never existed. These responses comply with CCP § 2031.230 for a statement of inability to comply.

Plaintiff did not address Defendant’s supplemental responses in his moving papers or meet and confer. In reply, Plaintiff has not asserted any additional argument in light of the supplemental responses.

The motion is DENIED as to these RFPs both on the merits and based on Plaintiff’s failure to meet and confer regarding the supplemental responses.

RFP 47

Although Defendant discusses this RFP in its opposing separate statement, Plaintiff did not move to compel a further response to RFP 47.

RFPs 40, 41, 41(a), 42

These RFPs seek documents Defendant will rely upon to show that it observes corporate formalities and is adequately capitalized; copies of Defendants’ articles of incorporation and related documents; documents that reflect Defendant’s officers, directors, and owners.

In the original responses, Defendant objected that the RFPs are overbroad and irrelevant. Defendant objected that RFP 40 seeks confidential financial information. In the second supplemental response to RFP 40, Defendant offered that the parties enter a confidentiality agreement and allow the Court or a referee to decide whether the requested documents are relevant to this action.

“Although corporations have a lesser right to privacy than human beings and are not entitled to claim a right to privacy in terms of a fundamental right, some right to privacy exists. Privacy rights accorded artificial entities are not stagnant, but depend on the circumstances.” (Roberts v. Gulf Oil Corp. (1983) 147 Cal.App.3d 770796-797.) “It is clear to us that the law is developing in the direction that the strength of the privacy right being asserted by a nonhuman entity depends on the circumstances. Two critical factors are the strength of the nexus between the artificial entity and human beings and the context in which the controversy arises.” (Ibid.)

Plaintiff has included detailed alter ego allegations in the FAC, in which he alleges that Does 1-25 are the owners, officers, and alter ego of Defendant. (FAC ¶¶ 4-6.) RFPs 40, 41, 41(a), 42, and 49 all appear reasonably calculated to lead to the discovery of admissible evidence related to this alter ego theory. These RFPs seek documents for which a corporation would not have a strong privacy objection (e.g. Articles of Incorporation, By-Laws). Similar, insofar as third-party officers or owners are affected, they would not have a strong privacy interest in disclosure of their association with Defendant as officers or directors. Thus, Plaintiff has shown good cause for these RFPs. Defendant has not persuasively justified its objections. Any privacy concern can be met by the parties entering into a confidentiality agreement that the documents are to be used for purposes of this litigation only. The court does not find it necessary or appropriate for the court to conduct any type of in camera review.

The motion is GRANTED as to these RFPs, subject to the parties executing a confidentiality agreement. The court refers the parties to the form protective order available for review on the court’s website.

RFPs 43-44, 46, 49

These RFPs seek documents that reflect capital contributions or monies paid from Sadayappa K. Durairaj to Defendant, payments to Durairaj from Defendant, or debt obligations of Durairaj to Defendant. RFP 49 broadly seeks all documents reflecting transfers of Defendant’s assets, apparently without limitation in time.

In the original responses, Defendant objected that the RFPs seek private and confidential information of Durairaj. In the supplemental responses, Defendant referred to the offer of compromise summarized above for RFP 40. Defendant also objected that RFP 49 is vague, ambiguous, and overbroad.

Plaintiff argues in his separate statement that Durairaj is Defendant’s president. Durairaj was named as a defendant and alter ego in the complaint but was dismissed on March 24, 2014 without prejudice to being renamed in this action as a Doe Defendant. These RFPs seek financial information of Durairaj that infringes on his right of privacy. However, Plaintiff has alleged alter ego which supports a compelling need for this information as to Durairaj.

The motion is GRANTED as to these RFPs, subject to the parties executing a confidentiality agreement. The court refers the parties to the form protective order available for review on the court’s website.

Verifications

In reply, Plaintiff argues that Defendant’s supplemental responses are not verified. This argument was not raised in the moving papers. However, the supplemental responses submitted in opposition are not verified by Defendant. (Oppo. Exh. 2-3.) Since verifications are clearly required, the Court also orders to Defendant to produce verifications for all of its responses and supplemental responses to the RFPs.

Monetary Sanctions

Because Plaintiff lost the motion in part and also failed to meet and confer as to the supplemental responses, Plaintiff is not entitled to monetary sanctions. Plaintiff’s request for monetary sanctions is DENIED.

Defendant’s Motion for an Order Compelling Further Responses to Request for Production (Set One)

Proof of Service for Opposition Papers

Plaintiff did not attach proof of service to his opposition brief. Defendant did not reply to the opposition but rather claimed in a statement that no opposition was received.

On October 1, 2014, Plaintiff submitted proof of service showing service of his opposition papers on September 19, 2014, which would be timely notice.

Based on this proof of service, the Court exercises its discretion to consider the opposition brief without a responsive reply. Defendant may request a continuance for additional reply briefing if it claims prejudice.

Meet and Confer

Defendant submits evidence that it met and conferred with Plaintiff regarding the subject RFPs by letter correspondence in July and August 2014. (Kwong Decl. ¶¶ 4-7.) As the parties apparently reached an impasse, the Court considers the merits of the motion.

RFPs 1-30

These RFPs seek various categories of documents that support allegations made in Plaintiff’s FAC, including documents that show he was terminated, that Defendant failed to pay him overtime, and that Plaintiff suffered emotional distress as a result of Defendant’s conduct. All of the RFPs appear to seek documents directly related to this action.

Plaintiff objected to the RFPs as overbroad and harassing. He also objected that the RFPs violate this attorney-client privilege and work-product doctrines. He then responded: “Plaintiff will produce all non-privileged responsive documents to this request in his possession, custody, and control.” Plaintiff apparently produced 32 pages of documents submitted as Exhibit C to the motion.

If a party asserts conclusory attorney-client and work product objections to discovery, the trial court can order that party to produce a privilege log pursuant to CCP § 2031.240(b) that includes “particularized identification of all documents to which the attorney-client or work product privilege is asserted and the facts justifying assertion of the privileges.” (Best Products, Inc. v. Superior Court (2004) 119 Cal.App.4th 1181, 1189, 1191.) Here, Plaintiff must produce a privilege log because he has asserted privilege objections as to all 30 RFPs. In opposition, Plaintiff has submitted a cursory privilege log that does not identify the withheld documents or the dates they were prepared. Plaintiff must identify the withheld documents with greater particularity. (See Ibid.)

Defendant also contends that Plaintiff must label the documents he produced pursuant to CCP § 2031.280(a). “Any documents produced in response to a demand for inspection, copying, testing, or sampling shall either be produced as they are kept in the usual course of business, or be organized and labeled to correspond with the categories in the demand.” (CCP § 2031.280(a).) Defendant cites no authorities for its assertion that Plaintiff cannot produce the documents “as they are kept in the usual course of business.” (Mot. 5.) Nevertheless, as discussed below, it appears that the 32 pages of documents produced by Plaintiff do not appear responsive to many of the RFPs, despite the fact that Plaintiff provided a statement of compliance for all RFPs. Accordingly, because Plaintiff’s reliance on the first production option in § 2031.280(a) appears to be obstructing discovery, the Court will require Plaintiff to label the production to correspond to the relevant categories. (See Rutter Guide, Civ. Pro. Before Trial ¶ 8:1471.5.)

Defendant contends that the 32 pages of documents produced by Plaintiff do not appear responsive to RFPs 3, 5, 7, 9-12, 14-15, 18, 21-30. Defendant contends that Plaintiff therefore must provide a statement of inability to comply pursuant to CCP § 2031.230. Defendant did not elaborate on this argument in the moving papers. (Mot. 5.) However, Defendant’s counsel verifies that Plaintiff’s entire production has been submitted as Exhibit C to the motion. (Kwong Decl. ¶ 3.) A review of these documents shows that they are not responsive to all of the RFPs. For instance, RFPs 22 and 24 ask Plaintiff to produce documents supporting his allegation that Kalioundji acknowledged Plaintiff was entitled to overtime and threatened Plaintiff to drop his lawsuit against Defendant. Plaintiff’s production of documents does not appear responsive to these RFPs. Accordingly, Plaintiff must produce a statement of inability to comply pursuant to CCP § 2031.230 or further documents in conformity with the statement of compliance.

The motion is GRANTED as to RFPs 1-30.

Monetary Sanctions

Monetary sanctions are warranted against Plaintiff as he has not shown that his opposition was made with substantial justification. Defendant’s request for $3,060 in sanctions is excessive in light of the nature and scope of the motion. The Court reduces that amount and imposes total monetary sanctions of $1,860 (6 hrs x $300/hr + $60 filing fee) on Plaintiff.

Defendant’s Motion for an Order Compelling Further Responses to Employment Law Form Interrogatories (Set One)

Proof of Service for Opposition Papers

Plaintiff did not attach proof of service to his opposition brief. Defendant did not reply to the opposition but rather claimed in a statement that no opposition was received.

On October 1, 2014, Plaintiff submitted proof of service showing service of his opposition papers on September 19, 2014, which would be timely notice.

Based on this proof of service, the Court exercises its discretion to consider the opposition brief without a responsive reply. Defendant may request a continuance for additional reply briefing if it claims prejudice.

Meet and Confer

Defendant submits evidence that it met and conferred with Plaintiff regarding the subject FI by letter correspondence in July and August 2014. (Kwong Decl. ¶¶ 4-7.) As the parties apparently reached an impasse, the Court considers the merits of the motion.

FI 217.1

This FI ask Plaintiff to provide factual information, witness information, and to identify documents in support of any response to certain RFAs that was not an unqualified admission.

As Plaintiff concedes in his opposition, his responses to this FI failed to respond to subpart (d), which asks Plaintiff to identify any documents that support his response and any person who has each document. In opposition, Plaintiff claims to have served supplemental responses to address this defect. However, it is not clear if these supplemental responses have been served on Defendant. Also, the supplemental responses submitted to the Court are not verified that thus do not constitute valid responses.

Plaintiff’s responses to subpart (b) are deficient as to RFAs 5 and 6. According to Defendant’s separate statement, in response to RFA 5, Plaintiff denied that Serra and Simi Workplace were separately incorporated entities. In response to RFA 6, Plaintiff denied that between 2008 and January 2013 he was employed by Serra and Simi Workplace to provide each with marketing services. Plaintiff explained in his responses “Plaintiff was an employee of Defendants, which employment included duties carried out at Defendants’ Simi Workplace location.” This response does not explain factually Plaintiff’s assertion in response to RFA 5 that Defendants are not separate corporate entities. The response also fails to explain why Plaintiff denied that he performed marketing services for both Serra and Simi Workplace.

Contrary to Defendant’s assertion, Plaintiff identified witnesses in response to subpart (c). Accordingly, a further response is not required for subpart (c).

The motion is GRANTED in part. Plaintiff to provide a further response to FI 217.1(b) and (d) for RFAs 5 and 6, and for FI 217.1(d) for RFAs 7-9, 11-12, 16, 18.

Monetary Sanctions

Monetary sanctions are warranted against Plaintiff as he has not shown that his opposition was made with substantial justification. Defendant’s request for $3,060 in sanctions is excessive in light of the nature and scope of the motion. The Court reduces that amount and imposes total monetary sanctions of $1,260 (4 hrs x $300/hr + $60 filing fee) on Plaintiff.