Case Name: James M. Silvia v. Chevron Corporation, et al.
Case No.: 2016-CV-300419

Motion to Compel Further Responses to Request for Production of Documents and Request for Monetary Sanctions by Defendants Chevron Corporation, Chevron U.S.A., Inc. and Chevron Pipe Line Company

Factual and Procedural Background

This is a wrongful termination action initiated by plaintiff James Silvia (“Plaintiff”) against defendants Chevron Corporation, Chevron U.S.A., Inc., Chevron Pipe Line Company (collectively, “Chevron”), MBF Inspection Services, Inc. (“MBF”), and Garth Kuhagen (“Kuhagen”).

According to the operative first amended complaint (“FAC”), on August 20, 2013, Plaintiff was hired by Chevron as a pipe line inspector. (FAC, ¶¶ 18, 29.) Plaintiff was hired to work solely on the Silicon Valley Rapid Transit (“SVRT”) project (the “Project”). The Project will extend the San Francisco Bay Area Rapid Transit (“BART”) System south from Fremont to Milpitas, San Jose, and Santa Clara, California. (Id. at ¶ 4.) Chevron has a joint easement along the Project with other companies, including “Verizon/MCI.” (Id. at ¶ 5.) Chevron has “huge high pressure lines running along this joint easement[,]” which “cross-over the Verizon/MCI lines” at various points, presenting safety issues. (Ibid.) During Plaintiff’s employment, he complained to Chevron about numerous safety violations occurring on the construction site. (Id. at ¶¶ 10-11.) While on Kuhagen’s construction crew, Plaintiff observed him routinely ignore safety regulations in order to save time. (Id. at ¶ 65.) After Plaintiff complained, Chevron moved him far away from areas where the safety violations were occurring. (Id. at ¶ 11.)

While Plaintiff was employed by Chevron, his wife, Debi Silvia (“Debi”), was employed by Verizon/MCI to create a BART train line using the joint easement. (FAC, ¶ 7.) As part of her employment, Debi routinely observed Chevron workers perform construction. (Id. at ¶¶ 67-70.) Debi witnessed Kuhagen and his construction crew routinely violate safety regulations. (Id. at ¶¶ 69-70.) Debi repeatedly complained to various government entities and Chevron about these serious safety issues. (Id. at ¶¶ 9, 12.) On February 6, 2015, Debi was at a site visit and needed to access a specific area, but access was obstructed by a large marker pole in the middle of the road. (Id. at ¶ 75.) Debi asked the transportation authority to move the large marker so she could cross the road. (Ibid.) Kuhagen arrived and said he would cut the top off the pole so that she could drive on top of it. (Id. at ¶ 78.) Debi said that was unsafe because the pole was directly on top of a high pressure gas line and driving on the pole could puncture it. (Ibid.) Debi’s refusal to drive on top of the pole led to a confrontation in which Kuhagen was visibly angry and slammed his car door several times. (Id. at ¶ 79.)

Later that day, Chevron terminated Plaintiff in retaliation for the work place safety complaints made by Debi and the belief he had made or was about to make safety complaints regarding the unsafe working conditions. (FAC, ¶ 12.) Chevron stated Plaintiff was fired for hitting an unmarked signal pole, but that was solely pretense because he never hit one. (Id. at ¶ 83.)

After Plaintiff’s termination, Debi continued to work for Verizon/MCI. (FAC, ¶ 92.) Chevron inspectors still intimidate Debi and question her authority during meetings. (Id. at ¶¶ 94-98.) To this day, Chevron inspectors, including Kuhagen, continue to violate safety regulations and standards. (Ibid.)

The FAC asserts eight causes of action for: (1) violation of Labor Code section 6310 for retaliation for making safety complaints; (2) violation of Labor Code section 6310 for retaliation for believing Plaintiff made safety complaints; (3) violation of Labor Code section 1102.5 for retaliation for making safety complaints; (4) violation of Labor Code section 1102.5 for retaliation for believing Plaintiff made safety complaints; (5) breach of contract; (6) breach of the covenant of good faith and fair dealing; (7) wrongful termination; and (8) violation of Business & Professions Code section 17200, et seq.

Discovery Dispute

On July 5, 2017, Chevron served Plaintiff with request for production of documents (set one) (“RPD”). (See Declaration of Tayanah Thomas at ¶ 2, Exhibit A.)

On August 7, 2017, Plaintiff served timely RPD responses interposing objections with factual answers. (See Declaration of Philip Gregory at ¶ 2, Exhibit 1.) Chevron obtained verifications to this discovery shortly after receiving RPD responses. (See Declaration of Tayanah Thomas at ¶ 4, Exhibit C.)

On August 15, 2017, counsel for Chevron attempted to meet and confer with Plaintiff’s attorney regarding the RPD responses. (See Declaration of Tayanah Thomas at ¶ 5.) Thereafter, on September 19, 2017, Chevron’s counsel sent a detailed meet and confer letter to Plaintiff’s attorney outlining deficiencies in his responses to RPD Nos. 11, 15, 16, 17, 18, 19, 23, 24, and 27. (Id. at ¶ 7, Exhibit E.) Chevron claimed that the objections raised were meritless and thus requested immediate production of any responsive documents. (Ibid.) Despite further meet and confer efforts, the parties were unable to informally resolve this dispute and therefore Chevron now seeks intervention from the Court.

Currently before the Court is Chevron’s motion to compel further responses to RPD. (Code Civ. Proc., § 2031.310.) Chevron also seeks an award of monetary sanctions in conjunction with the motion. Plaintiff filed written opposition. Chevron filed reply papers.

Motion to Compel Further Responses to RPD

Chevron seeks a code-compliant further response to RPD Nos. 11, 15, 16, 17, 18, 19, 23, 24, and 27 because no responsive documents have been produced and the objections raised are without merit.

Legal Standard

A responding party to an inspection demand must respond separately to each item in the demand by stating one of the following: (1) an agreement to comply; (2) a representation of inability to comply, or (3) objections. (Code Civ. Proc., § 2031.210.) If a party demanding a response to an inspection demand deems: (1) a statement of compliance with the demand is incomplete; (2) a representation of inability to comply is inadequate, incomplete, or evasive; or (3) an objection in the response is without merit or too general, that party may move for an order compelling further response to the demand. (Code Civ. Proc., § 2031.310; Weil & Brown, California Practice Guide: Civil Procedure Before Trial (Rutter Group 2017) at § 8:1490.)

RPD Nos. 15, 16, 17, 18, 24, and 27

In opposition, Plaintiff argues that, prior to the hearing on this motion, he produced additional documents responsive to RPD Nos. 15, 16, 17, 18, 24, and 27 on January 22, 2018. (See Declaration of Philip Gregory at ¶ 5; Exhibit 3.) In reply, counsel for Chevron accepts the representation made by Plaintiff’s attorney that documents responsive to those requests have been produced. (See Reply at p. 2, fn. 1.) Thus, Chevron withdraws its motion as to RPD Nos. 15, 16, 17, 18, 24, and 27. (Ibid.)

Accordingly, the motion to compel a further response to RPD Nos. 15, 16, 17, 18, 24, and 27 is MOOT.

RPD No. 11

RPD No. 11 seeks “All documents relating to or referring to any lawsuits, charges, or court or administrative proceedings, including civil, criminal, administrative, or bankruptcy proceedings, in which Plaintiff has been a party, class member, witness, or provided testimony or evidence in any way.”

As a preliminary matter, a motion to compel further responses to RPD must “set forth specific facts showing good cause justifying the discovery sought by the demand.” (Code Civ. Proc., § 2031.310, subd. (b)(1).) The moving party establishes good cause by showing: (1) relevance to the subject matter of the case; and (2) specific facts justifying discovery. (Kirkland v. Super. Ct. (2002) 95 Cal.App.4th 92, 98 [the party who seeks to compel production has met his burden of showing good cause simply by a fact-specific showing of relevance].) Discovery is allowed for any matters that are not privileged and relevant to the subject matter, and a matter is relevant if it appears reasonably calculated to lead to the discovery of admissible evidence. (Code Civ. Proc., § 2017.010.) Moreover, for discovery purposes, 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. (Gonzalez v. Super. Ct. (1995) 33 Cal.App.4th 1539, 1546.)

Chevron argues there is good cause for production as such information is relevant to Plaintiff’s claims and any defenses raised by Chevron. In particular, Chevron contends the FAC involves complaints made by Plaintiff and his wife about safety ultimately resulting in Plaintiff’s termination. Thus, Chevron asserts this request would encompass information relevant to establish the parameters and scope of any such complaints, including charges filed with the Division of Occupational Safety and Health on behalf of Plaintiff or his wife. At a minimum, such documents would also lead to the discovery of other admissible evidence. Based on the foregoing, the Court finds that Chevron has established good cause for production. Having done so, the burden shifts to Plaintiff to justify his objections to document production.

In response to RPD No. 11, Plaintiff objected on grounds that the request is unduly burdensome, harassing, seeks information which is equally available to defendants, and seeks documents protected by the work product doctrine and the attorney-client privilege. Plaintiff does not justify these objections in his opposition and thus the objections are overruled. (See Coy v. Super. Ct. (1962) 58 Cal.2d 210, 220-221 (Coy) [if a timely motion to compel has been filed, the burden is on responding party to justify any objection]; see also Williams v. Super. Ct. (2017) 3 Cal.5th 531, 541 (Williams) [the burden of justifying any objection and failure to respond remains at all times with the party resisting discovery].) Additionally, Plaintiff did not object to RPD No. 11 on the ground that the request is overbroad in his original responses, and, thus, such an objection raised for the first time in opposition to this motion is waived. (See Scottsdale Ins. Co. v. Super. Ct. (1997) 59 Cal.App.4th 263, 273 (Scottsdale Ins. Co.) [waiver occurs where the responding party fails to timely raise an objection in its initial response].)

Finally, the only other argument raised in opposition is that the request is not relevant as evidence of prior claims or lawsuits are generally inadmissible in a civil action. (See Brown v. Affonso (1960) 185 Cal.App.2d 235; Shmatovich v. New Sonoma Creamery (1960) 187 Cal.App.2d 342.) For the reasons stated above, the Court finds that RPD No. 11 seeks relevant documents. Furthermore, “[a]dmissibility is not the test and information unless privileged, is discoverable if it might reasonably lead to admissible evidence.” (Lopez v. Watchtower Bible and Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 591; see Volkswagen of America, Inc. v. Super. Ct. (2006) 139 Cal.App.4th 1481, 1490 [“A claim that discovery is not warranted because the evidence disclosed would not itself be admissible is untenable. It is settled that admissibility is not perquisite to discovery.”].) Therefore, the objection based on relevance is overruled.

Consequently, the motion to compel a further response to RPD No. 11 is GRANTED.

RPD No. 19

RPD No. 19 seeks “All documents that refer, pertain, or relate to any claim you [Plaintiff] filed with any municipal, county, state, or federal agency arising out of or in any way connected with your services on the Project.” Like RPD No. 11, Chevron argues there is good cause for production as such documents would establish the parameters and scope of any complaints by Plaintiff. As the Court again finds good cause for production, the burden shifts to Plaintiff to justify his objections.

In response to RPD No. 19, Plaintiff objected on grounds that the request seeks documents protected by the work product doctrine and the attorney-client privilege. Plaintiff does not justify these objections in his opposition and thus the objections are overruled. (See Coy, supra, 58 Cal.2d at pp. 220-221 [if a timely motion to compel has been filed, the burden is on responding party to justify any objection]; Williams, supra, 3 Cal.5th at p. 541 [the burden of justifying any objection and failure to respond remains at all times with the party resisting discovery]; see also Costco Wholesale v. Super. Ct. (2009) 47 Cal.4th 725, 733 [“The party claiming privilege has the burden of establishing the preliminary facts necessary to support its exercise, i.e., a communication made in the course of an attorney-client relationship.”]; Coito v. Super. Ct. (2012) 54 Cal.4th 480, 502 [an objecting party may only be entitled to (work product) protection “if it can make a preliminary or foundational showing that answering the interrogatory would reveals the attorney’s tactics, impressions, or evaluation of the case, or would result in opposing counsel taking undue advantage of the attorney’s industry or efforts”].)

In opposition, Plaintiff argues that RPD No. 19 is overbroad and seeks documents that are not relevant for the same reasons articulated with respect to RPD No. 11. However, these objections are waived as they are being raised for the first time in opposition. (See Scottsdale Ins. Co., supra, 59 Cal.App.4th at p. 273 [waiver occurs where the responding party fails to timely raise an objection in its initial response].)

Therefore, the motion to compel a further response to RPD No. 19 is GRANTED.

RPD No. 23

RPD No. 23 seeks “All documents that relate to or reflect your [Plaintiff’s] education, work history, and professional or job-related training, including without limitation, resumes created before, during, and after your employment with MBF or your work on the Project ended.” Chevron argues there is good cause for production as the requested documents are relevant to Plaintiff’s earning capacity and therefore bear on the issue of damages. (See Goyita v. Workmen’s Comp. App. Bd. (1970) 1 Cal.3d 889, 899.) Having established good cause for production, the burden shifts to Plaintiff to justify his objections.

In response to RPD No. 23, Plaintiff objects in part on the ground that the request is unduly burdensome. Plaintiff does not justify this objection in his opposition and thus the objection is overruled. (See Coy, supra, 58 Cal.2d at pp. 220-221 [if a timely motion to compel has been filed, the burden is on responding party to justify any objection]; Williams, supra, 3 Cal.5th at p. 541 [the burden of justifying any objection and failure to respond remains at all times with the party resisting discovery].)

Plaintiff also objects on grounds that the request is irrelevant, overbroad, and not limited in scope. As a preliminary matter, the Court notes that Plaintiff indicated in his initial response that, notwithstanding his objections, that he would meet and confer regarding this request. However, there is no evidence before the Court that Plaintiff’s attorney attempted to meet and confer regarding this request so as to narrow down the scope of the requested documents. It seems disingenuous for Plaintiff now to complain about the scope of the request while failing to engage in proper meet and confer efforts or otherwise suggest how the request could be limited. (See Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1016 [meet and confer rule is designed to encourage the parties to work out their differences informally so as to avoid the necessity for a formal order].) In addition, the Court finds that the request is sufficient for Plaintiff to provide any responsive documents regarding his education, work history, and training. Therefore, the objections are overruled.

Accordingly, the motion to compel a further response to RPD No. 23 is GRANTED.

Request for Monetary Sanctions

Chevron requests an award of monetary sanctions in conjunction with its motion to compel. The court shall impose a monetary sanction against any party, person, or attorney who unsuccessfully opposes a motion to compel unless it finds that the one subject to the sanction acted with substantial justification or other circumstances make imposition of the sanction unjust. (See Code Civ. Proc., § 2031.310, subd. (h).) In addition, the court may award sanctions in favor of a party who files a motion to compel discovery, even though the requested discovery was provided to the moving party after the motion was filed. (See Cal. Rules of Court, rule 3.1348(a).)

Here, Chevron seeks an award of sanctions in the amount of at least $6,800 against Plaintiff and/or his counsel. Counsel for Chevron bills her time at $450 per hour for a total of 15.5 hours based on preparing the moving papers and the reply brief. (See Declaration of Tayanah Thomas at ¶ 14.) The Court finds the request is code compliant and Plaintiff was not substantially justified in opposing the motion. Nor are there circumstances that make imposing a sanction unjust. However, the Court finds the requested amount to be excessive given the relatively straightforward issues presented by the motion. Therefore, the Court will award sanctions in the amount of $2,700 (6.0 hours X $450 per hour).

Disposition

The motion to compel a further response to RPD Nos. 11, 19, and 23 is GRANTED. Plaintiff shall serve Chevron with a verified code compliant further response, without objections, and produce all responsive documents within 20 calendar days of this Order.

The request for monetary sanctions is GRANTED IN PART. Counsel for Plaintiff shall pay $2,700 to counsel for Chevron within 20 calendar days of this Order