Case Name: Weber v. County of Santa Clara, et al.
Case No.: 2015-1-CV-287977

I. Factual Background

This is a retaliation action brought by plaintiff Jan Weber, M.D. (“Plaintiff”) against defendants Tiffany Ho, M.D., Michael Meade, M.D., Jeffrey Arnold, M.D., Paul Russell, M.D., and the County of Santa Clara (the “County”).

As alleged in the Complaint, the County employed Plaintiff as a psychiatrist for a period of around five years. (Complaint, ¶¶ 9, 44.) During this time, Plaintiff raised concerns about policies he believed violated federal regulations, compromised patient care, and/or imperiled staff safety. (Id. at ¶¶11, 21, 29, 31.) The County retaliated against him by, among other things, frequently moving him between different clinical sites, cutting his patient time, and refusing to interview or appoint him for positions he was qualified for. (Id. at ¶¶ 11, 31-33, 37, 40, 44.) Eventually, Plaintiff was terminated for purported lack of productivity and unprofessional conduct. (Id. at ¶ 44.)

The matter currently before the Court involves a discovery dispute.

For context, Plaintiff served the County with a demand for inspection of 18 locations he worked at or made protected complaints about during the course of his employment, including Santa Clara Valley Medical Center, the Valley Health Center Bascom/Pediatric Specialty Clinic, and Emergency Psychiatric Services, among others. (Mancuso Decl., ¶ 2.) The County served written objections to the demands and did not allow Plaintiff to inspect the sites. (Id. at ¶ 3.) Plaintiff responded with a meet and confer letter stating his belief the County’s objections lacked merit and asserting he was entitled to the site inspections. (Id., Exh. B.) He also offered to limit the inspection to five locations. (Id., Exh. F.) The County continued to stand on its objections and refused to allow the inspections. (Ibid.)

Unable to resolve the dispute, Plaintiff filed the present motion to compel compliance.

II. Motion to Compel Compliance

Plaintiff moves to compel compliance with his demand for inspection of premises and/or things. He also requests an award of sanctions.

As a preliminary matter, the presentation of Plaintiff’s motion is deficient. He neither cites the statute under which his motion is brought nor discusses relevant standards to evaluating whether he is entitled to the relief sought.

In the context of inspection demands, there are two motions that are commonly brought by a propounding party: (1) a motion to compel compliance with an agreement to permit inspection (see Code Civ. Proc., § 2031.320), and (2) a motion to compel further responses to an inspection demand (see Code Civ. Proc., § 2031.310). Here, though styled as a “motion to compel compliance,” there was never an agreement by the County to permit inspection. Thus, Plaintiff’s motion is presumably one to compel further responses.

Plaintiff, however, does not discuss the relevant standards for evaluating such a motion. For example, though it appears his motion is predicated on a statutorily enumerated ground for moving to compel further responses – namely, that the County’s objections to the demands are without merit (see Code Civ. Proc., § 2031.310, subd. (a)(3)) – Plaintiff does not address the objections in arguing the merits of his motion. Instead, he generally asserts he can obtain discovery via site inspections and states he is entitled to such inspections because the County did not move for a protective order. With respect to the latter contention, it is misplaced because there is no authority requiring a party to move for a protective order if it objects to an inspection demand; filing such a motion is optional. (See, e.g., Code Civ. Proc., § 2017.060, subd. (a).) The Civil Discovery Act permits a responding party to rest on its objections, in which case the propounding party must move to compel a further response. (See Code Civ. Proc., § 2031.310.) Regardless, Plaintiff’s motion is flawed for the more fundamental reason that he does not address issues germane to a court’s consideration of whether further responses to an inspection demand are warranted. As such, it is deficient.

In any event, Plaintiff’s motion must be denied because it violates the discovery motion cutoff deadline.

The Civil Discovery Act requires all discovery motions to be heard “on or before the 15th day, before the date initially set for the trial of the action.” (Code of Civ. Proc., § 2024.020, subd. (a).) This date may be extended in two instances. First, parties may enter into an agreement to extend the time for hearing discovery motions so long as the agreement is confirmed in a writing that specifies the extended date. (Code Civ. Proc., § 2024.060.) Second, “[o]n motion of any party, the court may grant leave…to have a motion concerning discovery heard, closer to the initial trial date[.]” (Code Civ. Proc., § 2024.050.)

Here, the initial trial date was May 7, 2018. This date was continued to August 13, 2018, and the discovery cutoff deadlines were continued by stipulation based on the new trial date. Therefore, the last day for any motion to be heard was July 30. Because this motion is set for August 7, it violates the discovery motion cutoff deadline. Thus, in order for the Court to reach the merits of the motion, there needs to be either an agreement between the parties or a motion to have it heard closer to the trial date under Code of Civil Procedure section 2024.050 (“Section 2024.050”).

Here, the record does not reflect any such agreement or motion. The Court observes Plaintiff previously filed an ex parte application seeking to shorten the time for and advance the hearing date on this motion. That application was not brought pursuant to Section 2024.050, and was seemingly aimed to secure a hearing date before the hearing cutoff deadline. In any event, the application was denied. Nor is there otherwise a motion presently before the Court seeking to have Plaintiff’s motion to compel heard closer to the trial date. Plaintiff did not file a Section 2024.050 motion concurrently with the instant motion, does not request such relief in his motion, and does not discuss any of the statutorily enumerated factors that must be considered by a court before it exercises its discretion to grant such a motion. (See Code Civ. Proc., § 2024.050, subd. (a)-(b); see also Pelton-Shepherd Industries, Inc. v. Delta Packaging (2008) 165 Cal.App.4th 1568, 1586-1587.) As such, it would be an abuse of discretion for this Court to consider the present matter. (See Pelton, supra, 165 Cal.App.4th at 1586-87.) Therefore, Plaintiff’s motion to compel compliance is DENIED.

Turning to the issue of sanctions, Plaintiff’s request is defective because he does not specify the type of sanctions sought, identify the person against whom he is seeking sanctions, or cite the statute pursuant to which he is seeking sanctions. (See Code Civ. Proc., § 2032.040; Cal. Rules of Court, rule 3.1113(b).) In any event, Plaintiff was not successful in bringing this motion. Thus, his request for sanctions is DENIED.