On 11 April 2014, the following motions were argued and submitted: (1) motion of defendants Hawaiian Airlines, Inc. and Linda Srabian to compel responses to deposition questions and for an award of monetary sanctions; and (2) motion of plaintiff Department of Fair Employment and Housing to compel further responses to special interrogatories and demand for inspection and copying of documents, and for monetary sanctions. Intervenor Michael DePonte filed a formal opposition to the motion of defendants Hawaiian Airlines, Inc. and Linda Srabian in which he requests monetary sanctions. In addition, defendant Hawaiian Airlines, Inc. filed a formal opposition to the motion of plaintiff Department of Fair Employment and Housing.

Statement of Facts

This action arises out of an employment dispute. Michael DePonte (“Mr. DePonte”), who was employed by Hawaiian Airlines, Inc. (“Hawaiian”) as a station manager at the San Jose International airport, suffered a stroke in May 2010. He returned to work in October 2010, under a new supervisor, Linda Srabian (“Ms. Srabian”), with work restrictions of checking his blood pressure daily and being allowed to go home if it was too high. On or about 11 January 2011, Mr. DePonte contacted Hawaiian’s human resource department and complained about Ms. Srabian’s behavior towards him. When a Hawaiian employee followed-up with Mr. DePonte the next day, Mr. DePonte allegedly could not recall the prior conversation. As a result, Hawaiian placed Mr. Deponte on an administrative leave of absence and scheduled fitness-for-duty examinations for him to attend. Mr. DePonte did not attend the first examination as scheduled and was subsequently terminated for failure to appear.

Plaintiff Department of Fair Employment and Housing (“DFEH”) filed an action against Hawaiian on behalf of Mr. DePonte, alleging that Hawaiian violated the Fair Employment and Housing Act (“FEHA”) by discriminating against Mr. DePonte on the basis of his disability, failing to reasonably accommodate his disability, failing to engage in the interactive process to determine a reasonable accommodation, retaliating against him for asserting his rights, subjecting him to an unlawful medical exam, and failing to take all reasonable steps to prevent discrimination from occurring. Mr. DePonte intervened in the action and alleged an additional cause of action against Hawaiian, and individually against Ms. Srabian (collectively “Defendants”), for disability harassment.

Discovery Dispute

Defendants’ Motion to Compel Responses to Deposition Questions

On 3 December 2013 and 4 December 2013, Defendants took Mr. DePonte’s deposition. (See Sumagaysay Dec., p. 2:14-16.) At the deposition, Defendants asked Mr. DePonte whether he had taken medical marijuana in the 24 hours prior to the deposition, if he had taken medical marijuana generally, and if he had taken medical marijuana for symptoms of nausea and/or low appetite. (See Defendants’ Mem. Ps & As., Ex. A., p. 8:20-23, 9:3-9, 49:3-23.) Mr. DePonte’s counsel objected to the questions on grounds that they violated Mr. DePonte’s right to privacy and instructed Mr. DePonte not to answer. (See Defendants’ Mem. Ps & As., Ex. A., p. 8:20-23, 9:3-9.)

On 4 December 2013, Defendants took the deposition of Mr. DePonte’s wife, Cheri DePonte (“Mrs. DePonte”). Mrs. DePonte was not represented by counsel at the deposition. (See Defendants’ Mem. Ps & As., p. 3:8-10.) At the deposition, Defendants asked Mrs. DePonte if Mr. DePonte used marijuana for nausea and/or low appetite, to which counsel for DFEH objected based on Mr. DePonte’s right to privacy. (See Defendants’ Mem. Ps & As., Ex. B., p. 30:12-14.) Mrs. DePonte then refused to answer based on Mr. DePonte’s right to privacy. (See Defendants’ Mem. Ps & As., Ex. B., p. 30:16-22.) Defendants also asked Mrs. DePonte whether Mr. DePonte had a medical marijuana card to purchase marijuana legally and Mrs. DePonte refused to answer based on Mr. DePonte’s right to privacy. (See Defendants’ Mem. Ps & As., Ex. B., p. 31:1-24.) Defendants’ counsel advised Ms. DePonte that Defendants might file a motion to compel her answers and she might have to pay the costs of a new deposition. (See id.)

During a telephone conference on 23 January 2014, Defendants’ counsel informed Mr. DePonte’s counsel that she was considering filing a motion to compel answers to deposition questions posed to Mr. DePonte and Mrs. DePonte regarding Mr. DePonte’s marijuana use. (See Sumagaysay Dec., p.2:24-27, 3:1-3.) On 10 February 2014, Defendants’ counsel sent a meet and confer letter to Mr. DePonte’s counsel arguing that the privacy objections made at the depositions were without merit. (See Sumagaysay Dec., p. 3:4-7.) Several emails were exchanged between Defendants’ counsel and Mr. DePonte’s counsel on 11 February 2014, in which Mr. DePonte’s counsel advised that he was not available to discuss the matter until 13 February 2014, due to a pre-planned vacation. (See Sumagaysay Dec., Ex. F., p. 1-2.) Defendants’ counsel requested a 30-day extension to file a motion to compel so the parties’ could have additional time to meet and confer. (See Sumagaysay Dec., Ex. F., p. 1-2.) Mr. DePonte’s counsel refused to grant the extension. (See Sumagaysay Dec., Ex. F., p. 1-2.) Defendants’ counsel provided her availability and sent follow-up emails on 12 February 2014 and 13 February 2014. (See Sumagaysay Dec., Ex. F., p. 1-2, G, H.) Mr. DePonte’ counsel and Defendants’ counsel met and conferred via telephone conference on 13 February 2014, but were unable to informally resolve the matter. (See Sumagaysay Dec., p. 3:26-27, 4:1-27, 5:1-2.) Defendants’ counsel and Mr. DePonte’s counsel sent follow-up emails on 14 February 2014, but were still unable to come to an agreement. (See Sumagaysay Dec., Ex. I., p. 1-2.)

On 14 February 2014, Defendants filed the instant motion to compel Mr. DePonte’s and Mrs. DePonte’s answers to deposition questions regarding Mr. DePonte’s marijuana use and for an award of monetary sanctions. The proof of service for the motion dated 14 February 2014 does not reflect that Mrs. DePonte was served with the motion. On 28 March 2014, Mr. DePonte filed papers in opposition of the motion in which he requests monetary sanctions. Defendants filed reply papers on 4 April 2014.

DFEH’s Motion to Compel Further Response to Special Interrogatories and Demand for Inspection and Copying of Documents

On 12 July 2013, DFEH served its first set of special interrogatories (“SI”) and demand for inspection and copying of documents (“RPD”) on Hawaiian. (See Seldin Dec., p. 2:5-6.) In relevant part, the discovery sought the identity of and job descriptions for all Hawaiian positions, other than station manager, for which Mr. DePonte was “qualified” that were open and vacant at any California location from January 2011 through the present. (See Sep. Stmt., p. 2:6-9, 6:3-7.)

Hawaiian served its initial responses to the SI and RPD on 23 September 2013. (See Seldin Dec., p. 2:8-9.) Subsequently, DFEH contacted Hawaiian regarding perceived deficiencies in Hawaiian’s initial responses, including responses to SI, No. 21 and RPD, No. 36, and asked for further responses to those requests. (See Seldin Dec., p. 2:9-23.)

On 5 February 2014, Hawaiian provided supplemental responses to SI, No. 21 and RPD, No. 36. DFEH’s counsel sent a meet and confer letter on 14 February 2014, indicating that Hawaiian’s supplemental responses to SI, No. 21 and RPD, No. 36 were insufficient and requesting further information. Hawaiian’s counsel responded on 26 February 2014, and advised that no further response would be provided.

On 19 March 2014, DFEH filed the instant motion to compel further responses to SI, No. 21 and RPD, No. 36 and for an award of monetary sanctions. On 28 March 2014, Hawaiian filed papers in opposition of the motion. DFEH filed reply papers on 4 April 2014.

Discussion

I. Defendants’ Motion to Compel Responses to Deposition Questions

Defendants seek an order compelling Mr. DePonte and Mrs. DePonte to answer deposition questions regarding Mr. DePonte’s marijuana use. Mr. DePonte opposes the motion, arguing that Defendants failed to give notice of the motion to Mrs. DePonte and adequately meet and confer, and that the questions at issue are irrelevant and invade his right to privacy.

A. Legal Standard
B.
Code of Civil Procedure section 2025.480 provides that, if a deponent fails to answer any question during a deposition, the party seeking discovery may move the court for an order compelling an answer. The burden is on the deponent who objected to any question to justify the failure to answer. (See San Diego Professional Ass’n. v. Super. Ct. (1962) 58 Cal.2d 194, 199; Coy v. Super Ct. (1962) 58 Cal.2d 210, 220-221.) If the court determines that the answer sought is subject to discovery, it shall order that the answer be given on the resumption of the deposition. (See Code Civ. Proc., § 2025.480, subd. (i).)

C. Analysis
D.
1. Notice
2.
As a threshold matter, Mr. DePonte argues that Defendants’ motion as it pertains to Mrs. DePonte should be denied because Defendants failed to serve Mrs. DePonte with notice of the motion.

Code of Civil Procedure section 2025.480 requires a party who is filing a motion to compel answer to deposition questions to give the deponent notice of the motion orally at the deposition or by subsequent service in writing. California Rules of Court, rule 3.1346 requires personal service of written notice of motion to compel and all supporting papers on a deponent who is a nonparty to the action, unless the nonparty deponent agrees to accept service by mail at an address specified on the deposition record.

Defendants’ proof of service does not list Mrs. DePonte. In addition, Mrs. DePonte declares that she never received a copy of the motion to compel from Defendants. (See Cheri DePonte Dec., p.1, ¶ 3.) There is no evidence that Mrs. DePonte was served personally or by mail with the written notice of the motion. Defendants argue that Ms. DePonte received sufficient notice of the motion because Defendant’s counsel informed her at the time of her deposition that they might file a motion to compel and Mrs. DePonte provided a declaration in support of Mr. DePonte’s opposition.

Defendants’ motion, as it pertains to Mrs. DePonte, does not comply with California Rules of Court, rule 3.1346 because Mrs. DePonte does not appear to have been served with notice. Moreover, Mrs. DePonte’s lack of notice implicates a due process issue because “fundamental principles of due process call for those with an interest in the matter to have notice and the opportunity to be heard.” (Monarch Healthcare v. Super. Ct. (2000) 78 Cal.App.4th 1282, 1286.)

Accordingly, Defendants’ motion to compel is DENIED insofar as it requests answers to questions posed to Ms. DePonte at her deposition.

3. Meet and Confer
4.
Mr. DePonte argues that Defendants’ motion should be denied because Defendants did not meet and confer in good faith prior to the filing of the motion.

A motion to compel answers to deposition questions must be accompanied by a declaration stating facts showing “a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (See Code Civ. Proc., §§ 2016.040, 2025.480, subd. (b).) A serious effort at informal resolution requires that counsel “attempt to talk the matter over, compare their views, consult and deliberate.” (See Townsend v. Super. Ct. (1998) 61 Cal.App.4th 1431, 1433 [informal resolution requirement is not fulfilled by bickering between counsel during deposition].)

Mr. DePonte asserts that Defendants’ meet and confer efforts were insufficient because: (1) substantial meet and confer discussions did not take place on the record at Mr. DePonte’s deposition; (2) Mr. DePonte’s counsel’s assertion during the 23 January 2014 telephone conference that she was considering filing a motion to compel was not a meet and confer effort; (3) and the telephone conference and emails with Mr. DePonte’s counsel on 13 February 2014 and 14 February 2014 were a “rush job” in which the parties ‘talked past each other” and did not exchange legal authorities regarding Mr. DePonte’s privacy rights in his marijuana use. (See Opp’n., p. 2:1-19.) In addition, Mr. DePonte’s counsel states that he was rushed, unfocused, and unprepared for the meet and confer session because he had just returned from vacation. (See Greeley Dec., p. 2:24-28.)

While the parties’ discussions on the record at the time of Mr. DePonte’s deposition and on 23 January 2014, standing alone, do not constitute sufficient attempts at informal resolution, the parties further engaged in substantial meet and confer efforts on later dates. On 13 February 2014, Mr. DePonte’s counsel and Defendants’ counsel met and conferred and discussed their respective positions in detail. (See Sumagaysay Dec., p. 3:26-27, 4:1-27, 5:1-2.) While they were unable to agree, counsel presented the merits of their respective positions. (See Townsend v. Super. Ct., supra, Cal.App.4th at p. 1435.) Furthermore, Defendants’ counsel and Mr. DePonte’s counsel sent follow-up emails on 14 February 2014, attempting once again to informally resolve the issues. (See Sumagaysay Dec., Ex. I., p. 1-2.) The fact that the parties met and conferred in the short time prior to the deadline for filing the motion did not prevent the parties from clearly outlining their positions and determining that an informal agreement to resolve the matter could not be reached. While Mr. DePonte’s counsel asserts that he was rushed and unprepared due to the timing of the meet and confer efforts, the Court notes that Defendants’ counsel proposed a 30-day extension to file the motion to compel deposition answers in order to allow the parties additional time to meet and confer, which was refused by Mr. DePonte’s counsel. (See Sumagaysay Dec., Ex. F., p. 1-2.) Thus, the Court finds that Defendants engaged in adequate efforts to informally resolve the discovery dispute prior to filing the motion to compel.

5. Relevancy
6.
Mr. DePonte argues that Defendants’ motion should be denied because the information sought is irrelevant.

Generally, a party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter and is reasonably calculated to lead to discovery of admissible evidence. (See Code Civ. Proc., § 2017.010; Calcor Space Facility, Inc. v. Super. Ct. (1997) 53 Cal.App.4th 216, 223.)

Defendants argue that evidence demonstrating the frequency with which Mr. DePonte used marijuana, the dosage of the marijuana, and whether Mr. DePonte was legally taking marijuana during his employment with Hawaiian is relevant to prove Defendants’ affirmative defense based on the after-acquired evidence doctrine which serves as a defense to an employee’s claim of wrongful discharge when the employer learns of employee wrongdoing that would have resulted in the employee’s discharge in any event. (See Murillo v. Rite Stuff Foods, Inc. (1998) 65 Cal.App.4th 833, 842; Camp v. Jeffer, Mangels, Butler & Marmaro (1995) 35 Cal. App. 4th 620, 632.)

Defendants assert that Hawaiian’s “House Rules” state that an employee could be terminated for use of a controlled substance, such as marijuana, without a valid prescription or in a manner other than as prescribed. (See Defendants’ Mem. Ps & As. P. 7:11-18; Sumagaysay Dec., Ex. A., p. 2.) Hawaiian was aware at the time it hired Mr. DePonte that he was taking medical marijuana and, during discovery, Defendants obtained a medical report from Mr. DePonte’s physician indicating that he had been using marijuana regularly. (See Greeley Dec., Ex. C., p. 26:4-6; Sumagaysay Dec., Ex. B., p. 1.) Defendants argue that they are therefore entitled to discover evidence relating to Mr. DePonte’s marijuana use and whether it violated Hawaiian’s “House Rules.”

Mr. DePonte argues that his marijuana use is irrelevant because Hawaiian was aware of the same at the time he was hired, he passed a drug test when he was hired, and there is no evidence that he used marijuana during work hours. (See Opp’n., p. 1:6-9.) Mr. DePonte asserts that based upon the fact that Hawaiian knew that he was using marijuana at the time he was hired, Hawaiian would not have terminated him based on his purported marijuana use. Mr. DePonte’s arguments do not address the relevancy of the evidence sought, but instead address the merits, or lack thereof, of Defendants’ affirmative defense based on the doctrine of after-acquired evidence. The fact that the evidence sought may support Mr. DePonte’s position and undermine Defendants’ affirmative defense based upon the doctrine of after-acquired evidence does not make the evidence sought irrelevant.

Defendants persuasively contend that Hawaiian had rules regarding the use of controlled substances which may have led to Mr. DePonte’s termination, if he was using marijuana in contravention of the rules. Thus, the Court finds that Mr. DePonte’s marijuana use during the time of his employment with Hawaiian from approximately 18 January 2008 through 25 February 2011 is relevant to Defendants’ affirmative defense based upon the doctrine of after-acquired evidence. (See Ross v. RagingWire Telecommunications, Inc. (2008) 42 Cal. 4th 920; Camp v. Jeffer, Mangels, Butler & Marmaro (1995) 35 Cal.App.4th 620, 635-636.)

Furthermore, while not directly addressed by Defendants, it is self-evident that the question to Mr. DePonte about whether he had used marijuana in the 24 hours prior to his deposition is relevant because it goes to Mr. DePonte’s ability to fully comprehend and accurately respond to the deposition questions being posed.

However, questions which inquire into the specific medical reasons for which Mr. DePonte was using marijuana, such as whether he was taking marijuana to treat symptoms of nausea and low appetite, are not relevant to Defendants’ affirmative defense or to Mr. DePonte’s ability to understand or respond to the deposition questions posed.

Thus, the Court sustains Mr. DePonte’s relevancy objection with regard to questions about specific medical symptoms or diagnoses for which Mr. DePonte used marijuana. The Court overrules Mr. DePonte’s objection as to questions regarding his general marijuana use during his employment with Hawaiian from approximately 18 January 2008 through 25 February 2011 and in the 24 hours prior to his deposition.

3. Objection Based on Right to Privacy

Mr. DePonte also argues Defendants’ motion should be denied because the information sought is protected by his right to privacy.

The burden is on Mr. DePonte to justify his privacy objection. (See San Diego Professional Ass’n v. Super. Ct. (1962) 58 Cal.2d 194, 199; Coy v. Super. Ct. (1962) 58 Cal.2d 210, 220-221; Weil & Brown, California Practice Guide: Civil Procedure Before Trial (Rutter Group 2012) at 8:814.) The right to privacy established by the California Constitution protects an individual’s “reasonable expectation of privacy against a serious invasion.” (See Pioneer Electronics, Inc. v. Super. Ct. (2007) 40 Cal.4th 360, 370, citing Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 40.)

In evaluating Mr. DePonte’s privacy claim, the court applies the framework set forth in Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 40. Mr. DePonte must first demonstrate that he possesses a “legally protected privacy interest” in information regarding his marijuana use. (See id. at p. 35.) Second, he must have a reasonable expectation of privacy under the particular circumstances. (See id. at p. 36–37.) Third, the invasion of privacy must be serious, as trivial invasions do not require the court to balance the interest of the parties. (See id. at p. 37.) However, if the invasion of privacy is serious and there is a reasonable expectation of privacy, then the court must balance the privacy interest at stake against other competing or countervailing interests. (See Pioneer Electronics (USA), Inc. v. Super. Ct., supra, 40 Cal.4th at p. 370–371; John B. v. Super. Ct. (2006) 38 Cal.App.4th 1177, 1199; Palay v. Super. Ct. (1993) 18 Cal. App. 4th 919, 934; Save Open Space Santa Monica Mountains v. Super. Ct. (2001) 84 Cal. App.4th 235, 252-255.)

Mr. DePonte argues that he has a legally protected privacy interest in his marijuana use because it is medical information. Numerous decisions have recognized a privacy interest in medical records pertaining to the individual’s physical or mental condition. (See Board of Medical Quality Assurance v. Gherardini, supra, 93 Cal. App. 3d at p. 678; Jones v. Super. Ct. (1981) 119 Cal. App. 3d 534, 549.) A person’s medical profile is an area of privacy more intimate and personal than many other areas that are judicially recognized and protected. (See Board of Medical Quality Assurance v. Gherardini (1979) 93 Cal. App. 3d 669, 678; Britt v. Super. Ct. (1978) 20 Cal.3d 844.)

In the instant case, Defendants’ deposition questions inquire into Mr. DePonte’s medical condition in which he has a reasonable expectation of privacy. (See Hill v. National Collegiate Athletic Assn., supra, 7 Cal.4th at p. 36-37.) Inquiry into Mr. DePonte’s medical condition is a serious invasion of privacy and has the potential to elicit irrelevant evidence of a highly personal nature. With regard to Defendants’ deposition question asking Mr. DePonte if he used medical marijuana to treat symptoms of nausea and low appetite, the question seeks irrelevant information regarding a specific medical diagnosis or condition versus information about Mr. DePonte’s general marijuana use. Therefore, on balance, Mr. DePonte’s privacy interest in specific medical diagnoses or condition for which he may have been taking medical marijuana outweigh Defendants’ interest in obtaining an answer to this question. (See Pioneer Electronics (USA), Inc. v. Super. Ct., supra, 40 Cal.4th at p. 370–371.)

However, to the extent that Defendants’ deposition questions inquired into Mr. DePonte’s general use of marijuana during his employment with Hawaiian, the Court finds that the information is directly relevant to Defendants’ affirmative defense based on the after-acquired evidence doctrine and, therefore, the Court must balance Mr. DePonte’s privacy interest against Defendants’ interest in obtaining relevant evidence. (See Pioneer Electronics (USA), Inc. v. Super. Ct., supra, 40 Cal.4th at p. 370–371; John B. v. Super. Ct., supra, 38 Cal.App.4th at p. 1199; Palay v. Super. Ct., supra, 18 Cal. App. 4th at p. 934; Save Open Space Santa Monica Mountains v. Super. Ct., supra, 84 Cal. App.4th at p. 252-255.) Information regarding whether Mr. DePonte utilized marijuana during his employment with Hawaiian, whether he had a valid prescription during his employment, how frequently and when he used marijuana during that time period, and the prescription dosage and instructions is necessary for Defendants to evaluate and establish their affirmative defense. To bar inquiry into Mr. DePonte’s marijuana use entirely would effectively prevent Defendants from pursuing their affirmative defense based on after-acquired evidence.

In addition, the question of whether Mr. DePonte had used marijuana in the 24 hours prior to his deposition is directly relevant to Mr. DePonte’s ability to fully comprehend and accurately respond to the deposition questions and, therefore, is necessary to Defendants’ interest in ensuring they obtain reliable answers which can be used at trial.

Thus, the Court finds that Defendants’ interest in the discovery of directly relevant evidence outweighs Mr. DePonte’s privacy interest. Mr. DePonte’s privacy rights are adequately protected by limiting the scope of the questioning to Mr. DePonte’s alleged marijuana use during his employment with Hawaiian from approximately 18 January 2008 through 25 February 2011, his compliance with Hawaiian’s “House Rules” regarding use of a controlled substance without a valid prescription or in a manner other than as prescribed, and his marijuana use in the 24 hours prior to his deposition.

C. Conclusion

Defendants’ motion to compel Mr. DePonte and Mrs. DePonte to respond to the deposition questions regarding Mr. DePonte’s marijuana use is GRANTED IN PART and DENIED IN PART.

The motion is GRANTED insofar as it requests answers to questions posed to Mr. DePonte at his deposition regarding his marijuana use during his employment with Hawaiian from approximately 18 January 2008 through 25 February 2011, his compliance with Hawaiian’s “House Rules” regarding use of a controlled substance without a valid prescription or in a manner other than as prescribed, and his marijuana use in the 24 hours prior to his deposition. The motion is DENIED insofar as the questions seek information regarding specific medical diagnosis, conditions, or symptoms for which Mr. DePonte used marijuana versus his general use of marijuana. The motion is DENIED insofar as it requests answers to questions posed to Ms. DePonte at her deposition.

II. DFEH’s Motion to Compel Further Responses to SI and RPD

DFEH seeks an order compelling Hawaiian to provide further responses to SI, No. 21 and RPD, No. 36. Hawaiian opposes the motion and argues that SI, No. 21 and RPD, No. 36 request irrelevant evidence and it has provided full and complete responses.

A. Objections to Evidence

As a preliminary matter, in its reply papers DFEH objects to statements made in Hawaiian’s counsel’s declaration on grounds of hearsay, lack of personal knowledge, and lack of foundation. There is no authority, however, for the proposition that the Court must rule on an evidentiary objection made in connection with a motion other than a motion for summary judgment or an anti-SLAPP motion. Furthermore, these statements are not necessary to the Court’s resolution of the motion. The Court, therefore, declines to rule on DFEH’s evidentiary objections.

B. SI, No. 21

1. Legal Standard

A party propounding interrogatories may move for an order compelling further responses if that party deems an answer is evasive or incomplete and/or an objection is without merit or too general. (See Code Civ. Proc., § 2030.300; Coy v. Super. Ct. (1962) 58 Cal.2d 210, 220-221.) The burden is on the responding party to justify and objections or failure to fully answer. (See Coy v. Super. Ct., supra, 58 Cal.2d at p. 220-221.)

2. Analysis

SI, No. 21 asks Hawaiian to identify job titles, locations, and names of the direct supervisors for all Hawaiian positions, other than station manager, for which Mr. DePonte was “qualified” that were open and vacant at any California location from January 2011 through the present. (See Sep. Stmt., p. 6:3-7.) Hawaiian initially responded by objecting to the SI on the following grounds: overbroad, unduly burdensome, irrelevant, vague and ambiguous with regard to the terms “qualified” and “open and vacant,” attorney-client privilege, and work product doctrine. In its supplemental response, Hawaiian reasserted the same objections and also responded that there is no information responsive to the SI. Hawaiian further responded that all responsive positions are under the direct and/or indirect supervision of Ms. Srabian, and there were no open and vacant positions in California during the subject time period, other than station manager, for which Mr. DePonte was qualified.

DFEH argues that a further response to SI, No. 21 is warranted because Hawaiian’s objections are without merit and its response is evasive and/or incomplete. In its opposition, Hawaiian argues that it provided a full and complete response and its objections based on over breadth, undue burden, oppression, irrelevancy, and vagueness are valid.

With regard to Hawaiian’s relevancy objection, discovery is allowed for any matters that are relevant to the subject matter of the action, not privileged, and reasonably calculated to lead to the discovery of admissible evidence. (See Code Civ. Proc., § 2017.010; Calcor Space Facility, Inc. v. Super. Ct. (1997) 53 Cal.App.4th 216, 223.) Information is “relevant to the subject matter” if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement thereof. (See Gonzalez v. Super. Ct. (1995) 33 Cal.App.4th 1539, 1546.) These relevance standards are applied liberally with any doubt generally resolved in favor of discovery. (See Colonial Life & Acc. Ins. Co. v. Super. Ct. (1982) 31 Cal.3d 785, 790.)

The information sought by SI, No. 21 is relevant to DFEH’s claims that Hawaiian violated Government Code section 12940, subdivisions (n) and (m). DFEH seeks information about the job titles, location, and names of the direct supervisors for all Hawaiian positions that were open and vacant, other than station manager, for which Mr. DePonte was “qualified” to establish that Hawaiian failed to provide Mr. DePonte with reasonable accommodation and engage in the interactive process. Information regarding open positions for which Mr. DePonte is qualified is essential to prove whether Hawaiian fulfilled its duties by making known to Mr. DePonte alternative job positions or other suitable job opportunities. (See Prilliman v. United Airlines, Inc. (1997) 53 Cal.App.4th 935, 950-951; Scotch v. Art Institute of California Orange County, Inc. (2009) 173 Cal.App.4th 986, 1013.) Hawaiian asserts that such information is not relevant unless a specific request for a position transfer is made, but cites no authority for that proposition. Hawaiian’s argument is undermined by decisions finding that an employer’s duty to reasonably accommodate and engage in the interactive process is an affirmative one. (See Prilliman v. United Airlines, Inc., supra, 53 Cal.App.4th at p. 954; Scotch v. Art Institute of California Orange County, Inc., supra, 173 Cal.App.4th at p. 1013.) Hawaiian also argues that Mr. DePonte was not qualified for any available positions, thereby making the inquiry irrelevant, but DFEH clearly disputes Hawaiian’s assertion and a jury could reasonably find Mr. DePonte qualified. (See Nadaf-Rahrov v. Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 970 and 988.) Thus, the relevancy objection is overruled.

With regard to its vagueness objection, Hawaiian argues that the term “qualified” is vague but does not argue that the term was so vague as to render the SI unintelligible. (See Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 783 [in order to justify a vagueness objection, the responding party must demonstrate that the request at issue is totally unintelligible].) In fact, in its opposition papers, Hawaiian cites the same regulation cited by DFEH in its moving papers, California Code of Regulations section 11065, to define a “qualified” individual as an employee who has the requisite skill, experience, education, and other job related requirements of the employment position such individual holds or desires, and who, with or without reasonable accommodation can perform the essential functions of the position. (See Opp’n., p. 8:8-12; Mem. Ps & As., p. 8:15-19.) Thus, it is apparent that the term “qualified” was not so vague as to render the question unintelligible and, therefore, Hawaiian’s objection is overruled.

With regard to its over breadth, burdensome, and oppressive objections, Hawaiian argues that its objections are supported by the fact that the time frame of the request is not limited in that it seeks information from January 2011 to the present. However, the request is in fact limited as it seeks only information on or after the date of Mr. DePonte’s termination. Furthermore, “some burden is inherent in all demands for discovery” and a party claiming that requested discovery is unduly burdensome must make a particularized showing of facts demonstrating hardship. (West Pico Furniture Co. v. Super. Ct. (1961) 56 Cal.2d 407, 418.) Hawaiian does not explain why producing the information requested would cause it undue burden or be oppressive and, thus, these objections are overruled.

Finally, Hawaiian argues that its answer to SI, No. 21 is full and complete. In support of its argument, Hawaiian contends that positions responsive to the SI are not reasonable accommodations because they are under the supervision of Ms. Srabian. However, this argument is misleading because the SI does not ask Hawaiian to provide information regarding job positions which it believes are reasonable accommodations for Mr. DePonte. Instead, the SI asks for information about positions for which Mr. DePonte was qualified.

Hawaiian also argues that its response is full and complete because its answer states that there is no information responsive to the SI. Hawaiian asserts that there is no responsive information because there are no responsive positions for which Mr. DePonte was qualified as he does not meet at least one job-related requirement of any open or vacant position such as: the ability to work under pressure with all levels of employees, two years of supervisor experience leading individual employees, and positively influencing others through leadership skills. Hawaiian cites several work-related incidents involving Mr. DePonte to support its position that Mr. DePonte does not meet the job-related requirements.

DFEH disagrees with Hawaiian’s assertion that Mr. Deponte is not qualified for any responsive position. DFEH contends that Mr. DePonte is capable of meeting the job-related requirements cited by Hawaiian. DFEH argues that Hawaiian may not unilaterally decide whether Mr. DePonte is qualified for a particular position and cites Nadaf-Rahrov v. Neiman Marcus (2008) 166 Cal.App.4th 952, in support of the same. In Nadaf-Rahrov v. Neiman Marcus, the court found the employer was obligated to provide a list of vacant jobs in response to an interrogatory even though it contended that the employee was unable to perform work in any capacity due to her physical condition. (See id. at 970.)

However, Nadaf-Rahrov v. Neiman Marcus is distinguishable from the present case because the interrogatory in that case asked the employer to identify only “a list of vacant jobs” that were available during a specified time period. (See Nadaf-Rahrov v. Neiman Marcus, supra 166 Cal.App.4th at p. 969.) In the instant case, SI, No. 21 asked Hawaiian not to identify a list of vacant positions, but also to make a good faith determination regarding whether Mr. DePonte was qualified for those positions. Hawaiian performed such an analysis based upon several job requirements and determined that Mr. DePonte was not. The fact that DFEH disagrees with Hawaiian’s analysis that Mr. DePonte is not qualified does not mean that the response is incomplete or evasive. If DFEH wanted to obtain a list of any and all open or vacant positions with Hawaiian during the subject time period and then perform its own analysis of whether Mr. DePonte was qualified, it should have requested the same. Similarly, if DFEH wanted a list of the open and vacant positions for which Mr. DePonte was qualified for solely on the basis of his skill, education, and experience, it should have defined the term “qualified” as them same in its interrogatory. However, the question as drafted allows Hawaiian to make a good faith determination as to whether Mr. DePonte was qualified for positions and respond accordingly. Thus, the Court finds that Hawaiian’s response is full and complete.

Accordingly, even though all of Hawaiian’s objections are overruled, no further response is required because Hawaiian’s substantive answer is full and complete in and of itself and it does not appear that any responsive information was withheld based upon one of the objections.

C. RPD, No. 36

1. Legal Standard

A party propounding a request for inspection or copying of documents may move for an order compelling a further response if it deems that a statement of compliance with the demand is incomplete or an objection in response is without merit or too general. (See Code Civ. Proc., § 2031.310, subds. (a)(1) and (3).) The motion must set forth “specific facts showing good cause justifying the discovery sought by the demand.” (Code Civ. Proc., § 2031.310, subd. (b)(1); Kirkland v. Super. Ct. (2002) 95 Cal.App.4th 92, 98.) If good cause is shown, the burden shifts to the responding party to justify any objections. (See Kirkland v. Super. Ct., supra,) 95 Cal.App.4th at p. 98.)

2. Analysis

DFEH argues that a further response to RPD, No. 36 is warranted because Hawaiian’s objections are without merit and the response is evasive and/or incomplete.

RPD, No. 36 asks Hawaiian to provide job descriptions for all Hawaiian positions subject to the same conditions listed in SI, No. 21. Hawaiian initially responded by objecting to the RPD on the following grounds: overbroad, unduly burdensome, irrelevant, vague and ambiguous with regard to the terms “qualified” and “open and vacant,” attorney-client privilege, and work product doctrine. In its supplemental response, Hawaiian reasserted the same objections and also responded that there are no responsive documents in its possession, custody, or control because they never existed. Hawaiian further responded that any responsive documents were for positions under the direct and/or indirect supervision of Ms. Srabian, and there were no positions that were open and vacant in California during the subject time period, other than station manager, for which Mr. DePonte was qualified.

Hawaiian argues that a further response to RPD, No. 36 is not warranted because its response is full and complete and its objections based on over breadth, undue burden, oppression, irrelevancy, and vagueness are valid. Hawaiian provides the same justification for these arguments as it did for SI, No. 21.

For the same reasons outlined with regard to SI, No. 21, Hawaiian’s objections to RPD, No. 36 based on over breadth, undue burden, oppression, irrelevancy, and vagueness are overruled.

In addition, Hawaiian’s response to RPD, No. 36 is full and complete because its statement of non-compliance indicates that it has have no responsive documents in its possession, custody, or control because none existed. (See Code Civ. Proc., § 2031.210, subd. (a).) Hawaiian persuasively argues that no responsive documents exist because Mr. DePonte was not qualified for any of the job descriptions sought by the RPD. For the same reasons outlined with regard to SI, No. 21, Hawaiian’s analysis that Mr. DePonte was not qualified for any of the positions for which job descriptions sought is valid and if DFEH wanted to obtain job descriptions for any open and vacant position in California, it should have requested same. Thus, a further response to RPD, No. 36 is not warranted.

Thus, even though all of Hawaiian’s objections are overruled, no further response is required because Hawaiian’s substantive answer is full and complete in and of itself and it does not appear that any responsive information was withheld based upon one of the objections.

D. Conclusion

DFEH’s motion to compel further responses to SI, No. 21 and RPD, No.36 is DENIED because Hawaiian’s responses are full and complete.

III. Requests for Monetary Sanctions

A. Defendants’ Motion to Compel Responses to Deposition Questions

Both Defendants and Mr. DePonte request monetary sanctions under Code of Civil Procedure section 2023.010.

However, Code of Civil Procedure section 2023.010 merely defines acts that constitute misuses of the discovery process and does not itself set forth any provisions regarding the issuance of a monetary sanction.

Accordingly, both Defendants’ and Mr. DePonte’s requests for monetary sanctions are DENIED.

B. DFEH’s Motion to Compel Further Response to SI and Compliance with RPD

DFEH requests monetary sanctions against Hawaiian and/or its counsel under Code of Civil Procedure sections 2030.300, 2031.310, and 2031.320.

As a preliminary matter, Code of Civil Procedure section 2031.320 addresses sanctions in connection with a motion to compel compliance with a response to a demand for inspection or copying of documents. As noted previously, despite its title, DFEH’s motion is properly construed as a motion to compel a further response to a demand for inspection or copying and, thus, Code of Civil Procedure section 2031.320 does not apply.

Code of Civil Procedure sections 2030.300 and 2031.310 state that the court shall impose a monetary sanction against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a further response to interrogatories or demand for inspection or copying of documents, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.

DFEH was not successful on its motion and, therefore, is not entitled to an award of sanctions.

Conclusion and Order

Defendants’ motion to compel Mr. DePonte and Mrs. DePonte to respond to the deposition questions regarding Mr. DePonte’s marijuana use is GRANTED IN PART and DENIED IN PART. The motion is GRANTED insofar as it requests answers to questions posed to Mr. DePonte at his deposition regarding his marijuana use during his employment with Hawaiian from approximately 18 January 2008 through 25 February 2011, his compliance with Hawaiian’s “House Rules” regarding use of a controlled substance without a valid prescription or in a manner other than as prescribed, and his marijuana use in the 24 hours prior to his deposition. The motion is DENIED insofar as the questions seek information regarding specific medical diagnosis, conditions, or symptoms for which Mr. DePonte used marijuana versus his general use of marijuana. Accordingly, Mr. DePonte shall appear and answer questions as specified herein at a mutually agreed upon date and time, within 20 calendar days of the filing of this Order. The motion is DENIED insofar as it requests answers to questions posed to Ms. DePonte at her deposition.

DFEH’s motion to compel further responses to SI, No. 21 and RPD, No. 36 is DENIED.

Both Defendants’ and Mr. DePonte’s requests for monetary sanctions in connection with Defendants’ motion to compel answer to deposition questions regarding Mr. DePonte’s marijuana use are DENIED.

DFEH’s request for sanctions in connection with its motion to compel further responses to SI, No. 21 and RPD, No. 36 is DENIED.