Case Name: Gregory Steshenko v. De Anza College, et al.
Case No.: 2017-CV-317602

Demurrer to the Second Amended Complaint and Motion to Compel Further Responses to Special Interrogatories, Form Interrogatories, and Requests for Production and Request for Monetary Sanctions by Defendants Foothill-De Anza Community College District, Patricia Buchner, Anita Muthy Ala-Kandula and Lorrie Ranck

Factual and Procedural Background

This is an action for age discrimination. In 2016, plaintiff Gregory Steshenko (“Plaintiff”) (self-represented), 55 years old, completed a phlebotomy training program and obtained a phlebotomist state license, the prerequisite for admission to the Medical Laboratory Technician (“MLT”) program. (See Second Amended Complaint [“SAC”] at ¶ 10.) Plaintiff thereafter enrolled in the MLT program at De Anza College. (Ibid.)

After Plaintiff started the program, defendant Patricia Buchner (“Buchner”) notified him that he needed to complete an “externship” at a clinical agency in order to graduate from the program. (SAC at ¶ 12.) The school was responsible for providing students with a list of the clinical agencies that might accept them for externship. (Id. at ¶ 26.) Thereafter, the burden is on the student to find a clinical site willing to accept them. (Ibid.) Placement for the externship is a competitive process and the college has no control over the externship sites. (Ibid.)

Defendant Buchner sent Plaintiff to three different interviews with clinical agencies in order to fulfill the externship requirement. (See SAC at ¶¶ 19, 22, 27, 44.) Following the first two interviews, the clinical agencies rejected Plaintiff because of his age and that they were seeking an experienced phlebotomist. (Id. at ¶¶ 19, 22, 45, 46.) During the third interview, the agency director suggested that Plaintiff’s age is not suitable for an MLT role and thus he should be applying for a Senior Information Technology position. (Id. at ¶¶ 27, 47.) Thereafter, the clinical agency rejected Plaintiff’s candidacy and a younger person was assigned to the externship. (Id. at ¶¶ 28, 48.)

Following the interviews, Plaintiff complained to defendants about the unlawful nature of the externship graduation requirement and the age discrimination he was subjected to. (SAC at ¶¶ 24, 29.) Plaintiff also requested an alternative coursework that would enable him to graduate from the program. (Id. at ¶ 24.) Plaintiff received no answer to his complaint and request. (Ibid.) After the third interview, defendant Buchner informed him that no other clinical sites are taking students. (Id. at ¶¶ 29, 49.)

Plaintiff’s training was sponsored by the County of Santa Cruz. (SAC at ¶¶ 30, 51.) Since Plaintiff cannot graduate from the program in a timely manner, he lost the sponsorship and no longer has the means to subsist through six months of unpaid work. (Ibid.) Thus, because of his age and lack of experience in phlebotomy, Plaintiff is unable to graduate from the program, apply for the state license and enter the job market. (Id. at ¶¶ 31, 51.)

On August 10, 2017, Plaintiff filed a timely administrative claim with De Anza College for age discrimination and unlawful operation of the MLT program. (SAC at ¶ 7.) There was no response by De Anza College. (Ibid.)

On August 15, 2017, Plaintiff filed an age discrimination complaint against De Anza College with the Office for Civil Rights (“OCR”) of the US Department of Education. (SAC at ¶ 8.) OCR declined to pursue the complaint because Plaintiff already filed a complaint with the college. (Ibid.) Plaintiff therefore has exhausted his administrative remedies. (Id. at ¶ 9.)

On September 6, 2018, Plaintiff filed the operative SAC against defendants Foothill-De Anza Community College District, Buchner, Anita Muthy Ala-Kandula and Lorrie Ranck (collectively, “Defendants”) alleging causes of action for: (1) age discrimination; (2) deprivation of access to education using illegal prerequisites; (3) violation of the California Labor Code; (4) breach of contract; and (5) intentional infliction of emotional distress.

Discovery Dispute

On July 2, 2018, Defendants served Plaintiff with the following discovery: (1) special interrogatories (set one) (“SI”); (2) general form interrogatories (set one) (“FI”); and (3) requests for production of documents (set one) (“RPD”). (Powell Decl., ¶ 2, Ex. A.) Plaintiff thereafter served discovery responses interposing objections with factual answers. (Id. at ¶¶ 9, Ex. G, H.)

Following receipt of discovery responses, defense counsel sent a meet and confer letter to Plaintiff addressing deficiencies in the responses. (Powell Decl., ¶ 17, Ex. K.) In doing so, Defendants argued the objections lacked merit. (Ibid.) In response, Plaintiff stood by his objections and would not provide any supplemental discovery answers. (Id. at ¶ 18, Ex. L.) Since the parties were unable to resolve this discovery dispute, Defendants now seek intervention from the Court.

Motions before the Court

The following motions are currently before the Court: (1) Defendants’ demurrer to the SAC; and (2) Defendants’ motion to compel further responses to SI, FI, and RPD. Defendants also seek an award of monetary sanctions in conjunction with their discovery motion. Plaintiff filed written oppositions. Defendants filed reply papers. No trial date has been set.
Demurrer to the SAC

Defendants demur to the first, second, third, and fifth causes of action on the ground that they fail to state a claim. (Code Civ. Proc., § 430.10, subd. (e).) Defendants also demur to Plaintiff’s claim for punitive damages.

Legal Standard

“In reviewing the sufficiency of a complaint against a general demurer, we are guided by long settled rules. ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. We also consider matters which may be judicially noticed.’” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “A demurrer tests only the legal sufficiency of the pleading. It admits the truth of all material factual allegations in the complaint; the question of plaintiff’s ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court.” (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213–214.)

“The reviewing court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. The court does not, however, assume the truth of contentions, deductions or conclusions of law. … [I]t is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory. And it is an abuse of discretion to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment.” (Gregory v. Albertson’s, Inc. (2002) 104 Cal.App.4th 845, 850.)

First Cause of Action: Age Discrimination

The first cause of action is a claim for age discrimination brought under Government Code section 11135. That section provides in relevant part: “No person in the State of California shall, on the basis of sex, race, color, religion, ancestry, national origin, ethnic group identification, age, mental disability, physical disability, medical condition, genetic information, marital status, or sexual orientation, be unlawfully denied full and equal access to the benefits of, or be unlawfully subjected to discrimination under, any program or activity that is conducted, operated, or administered by the state or by any state agency, is funded directly by the state, or receives any financial assistance from the state.” (Gov’t Code, § 11135, subd. (a).)

Plaintiff alleges Defendants conceived, created and operate a system that discriminates against students on the basis of their age in access to the educational program, and predicates graduation from the program upon the student’s age. (SAC at ¶ 54.) On three separate occasions, Defendants allegedly deprived Plaintiff of enrollment into the course required for graduation because of his age. (Id. at ¶ 55.)

The demurrer to the first cause of action is brought only by the individual defendants. In doing so, they argue that Plaintiff cannot hold them personally liable (see SAC at ¶ 4) under a claim for age discrimination. In support, Defendants cite to the definition of “state agency” which means “an administrative subdivision or instrumentality of State government, including, but not limited to, agencies, departments, offices, commissions, boards, bureaus, and divisions, which has the statutory or constitutional authority to provide State support to any person.” (Cal. Code Regs., tit. 2, § 11150.) Defendants also rely on state and federal authorities interpreting anti-discrimination statutes that have held that liability does not run against individual employees. (See Miller v. Maxwell’s Intern. Inc. (9th Cir. 1993) 991 F.2d 583, 587 [the liability schemes under Title VII and the ADEA both limit civil liability to the employer]; see also Reno v. Baird (1998) 18 Cal.4th 640, 643 [holding that persons claiming discrimination under the FEHA may sue and hold liable their employers, but not their individual supervisors].)

By way of example, as pointed out in the reply brief, the U.S. District Court for the Northern District, in considering an ADA claim brought by Plaintiff in an earlier federal action, stated the following:

“[T]he ADA prohibits a ‘program or activity’ receiving federal financial assistance from discriminating against a person because of that person’s age. (Citation.) ‘Program or activity’ is defined to include a college, university, or other postsecondary institution, or a public system of higher education. (Citation.) Because school employees are not included in that definition, and because school employees do not ‘receive federal financial assistance,’ Gayard and Abramson (individual defendants) are not the proper defendants under the ADA.”

(Steshenko v. Gayard (N.D. Cal. 2014) 44 F. Supp.3d 941, 952.)

In opposition, Plaintiff does not attempt to address or distinguish the state and federal authorities cited by Defendants. Instead, Plaintiff argues the individual defendants may be held personally liable under 42 U.S.C. § 1983 and Labor Code § 3095 and other sections of the Government Code. (See OPP at pp. 8-9.) These statutes however are not included in the SAC in support of the first cause of action and thus cannot be considered on demurrer. (See SKF Farms v. Super. Ct. (1984) 153 Cal.App.3d 902, 905 [“A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.”]; see also Ion Equipment Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881 [“The purpose of a general demurrer is to determine the sufficiency of the complaint and the court should only rule on matters disclosed in that pleading.”].) Plaintiff therefore fails to allege sufficient facts to state a claim against the individual defendants for age discrimination.

Therefore, the demurrer to the first cause of action is SUSTAINED WITH LEAVE TO AMEND.

Second Cause of Action: Deprivation of Access to Education Using Illegal Prerequisites

The second cause of action is a claim for deprivation of access to education using illegal prerequisites. Plaintiff alleges his claim under 5 CCR § 55003. (SAC at ¶ 59.) In doing so, Plaintiff alleges Defendants established unlawful prerequisites and used them to deprive him of an access to education. (Id. at ¶ 60.)

“The governing board of a community college district may establish prerequisites, corequisites, and advisories on recommended preparation, but must do so in accordance with the provisions of this article.” (Cal. Code. Regs., tit. 5, 55003, subd. (a).) As an initial matter, the Court is unaware of any cause of action for relief under this provision. To the extent that such a claim exists, it is unclear, based on the facts alleged, how Defendants violated this section. Furthermore, where a student challenges a prerequisite based on unlawful discrimination, he or she must file a formal complaint of unlawful discrimination in compliance with section 55003, subdivision (q). Plaintiff does not allege any such compliance in the SAC.

Accordingly, the demurrer to the second cause of action is SUTAINED WITH LEAVE TO AMEND.

Third Cause of Action: Violation of the California Labor Code

The third cause of action is a claim for violation of the California Labor Code. Plaintiff alleges Defendants colluded with their confederates at certain clinical agencies to develop a scam that circumvents the requirements of the California Labor Code. (SAC at ¶ 62.)

As a preliminary matter, the Labor Code does not govern liability of one who is not the employer to an employee of another. (See Cilibrasi v. Reiter (1951) 103 Cal.App.2d 397, 401.) Here, Plaintiff fails to allege the existence of any employer-employee relationship for the Labor Code to apply. In addition, Plaintiff fails to cite which provision of the Labor Code was allegedly violated by Defendants. Based on the foregoing, Plaintiff fails to state sufficient facts to support the third cause of action.

Accordingly, the demurrer to the third cause of action is SUSTAINED WITH LEAVE TO AMEND.
Fifth Cause of Action: Intentional Infliction of Emotional Distress

The fifth cause of action is a claim for intentional infliction of emotional distress. “The elements of a cause of action for intentional infliction of emotional distress are (1) the defendant engages in extreme and outrageous conduct with the intent to cause, or with reckless disregard for the probability of causing, emotional distress; (2) the plaintiff suffers extreme or severe emotional distress; and (3) the defendant’s extreme and outrageous conduct was the actual and proximate cause of the plaintiff’s extreme or severe emotional distress.” (So v. Shin (2013) 212 Cal.App.4th 652, 671.)

Plaintiff alleges that Defendants’ conduce is extreme, unreasonable and outrageous and that, by engaging in such conduct, Defendants intended or recklessly disregarded the foreseeable risk that Plaintiff would suffer extreme emotional distress. (SAC at ¶ 68.) As a result of said conduct, Plaintiff suffered severe emotional distress, pain and suffering, fear, anxiety, embarrassment and humiliation. (Ibid.) As Defendants point out, such allegations constitute legal conclusions instead of ultimate facts. Plaintiff has not pled specific facts here to satisfy the elements of intentional infliction of emotional distress and state a cause of action.

Therefore, the demurrer to the fifth cause of action is SUSTAINED WITH LEAVE TO AMEND.

Claim for Punitive Damages

Finally, Defendants demur to Plaintiff’s claim for punitive damages. However, as Plaintiff points out in opposition, the appropriate procedural device for challenging a portion of a cause of action seeking an improper remedy is a motion to strike. (Caliber Bodyworks, Inc. v. Super. Ct. (2005) 134 Cal.App.4th 365, 385.) Therefore, the demurrer to the prayer for punitive damages is OVERRULED.

Disposition

The demurrer to the first, second, third, and fifth causes of action is SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND for failure to state a claim. (See City of Stockton (2007) 42 Cal.4th 730, 747 [where plaintiff has not had opportunity to amend complaint in response to demurrer, “leave to amend is liberally allowed as a matter of fairness unless the complaint shows on its face that it is incapable of amendment”].)

The demurrer to the claim for punitive damages is OVERRULED.

Motion to Compel Further Responses to SI

Defendants move to compel a further response to SI Nos. 1, 2, 3, 4, 5, 6, 7, 8, 10, 11, 12, 13, 14, 15, 16, 17, and 18 because the objections raised are without merit.

Legal Standard

A responding party must provide non-evasive answers to interrogatories that are “as complete and straightforward…to the extent possible,” and, if after a reasonable and good faith effort to obtain the information they still cannot respond fully to an interrogatory, the responding party must so state in its response. (Code Civ. Proc., § 2030.220.) If the responding party provides incomplete or evasive answers, or objections without merit, the propounding party’s remedy is to seek a court order compelling a further response to the interrogatories. (Code Civ. Proc., § 2030.300.) If a timely motion to compel answers is filed, the burden is on the responding party to justify any objection or failure to fully answer the interrogatories. (See Coy v. Super. Ct. (1962) 58 Cal.2d 210, 220-221 (Coy).)

SI No. 1

SI No. 1 asks Plaintiff to state each fact in support of his claim for age discrimination. Plaintiff objects on the ground that the interrogatory is overbroad, burdensome, irrelevant, immaterial, incompetent, harassing, not reasonably calculated to lead to admissible evidence and seeks repetition of information from the pleading.

Plaintiff’s objections lack merit as “[d]iscovery necessarily serves the function of ‘testing the pleadings,’ i.e., enabling a party to determine what his opponent’s contentions are and what facts he relies upon to support his contentions.” (Burke v. Super. Ct. (1969) 71 Cal.2d 276, 281 (Burke).) Accordingly, Defendants are entitled to discover facts in support of Plaintiff’s age discrimination claim in defending against the case. In addition, Plaintiff states the interrogatory is not appropriate as the SAC had not yet been filed. This response is unavailing as the SAC has now been filed with the Court. Furthermore, “[t]he right to discovery generally does not depend on the status of the pleadings, i.e., the case need not be ‘at issue.’ ” (Weil & Brown, CAL. PRAC. GUIDE: CIVIL PROCEDURE BEFORE TRIAL (The Rutter Group 2018) ¶8:58, p. 8B-13; see Mattco Forge, Inc. v. Arthur Young & Co. (1990) 223 Cal.App.3d 1429, 1436 [sanctions upheld for refusal to make discovery because demurrer pending].) Defendants therefore are entitled to a code compliant further response.

Consequently, the motion to compel a further response to SI No. 1 is GRANTED.

SI No. 2

SI No. 2 asks Plaintiff to identify each witness with knowledge of facts supporting his claim for age discrimination. Plaintiff objects on grounds that the interrogatory is “asked and answered” and repetitive of his response to FI No. 12.1. These are not valid objections as answers to interrogatories “shall be as complete and straightforward as the information reasonably available to the responding party permits.” (See Code Civ. Proc., § 2030.220, subd. (a); see also Deyo v. Killbourne (1978) 84 Cal.App.3d 771, 783-784 (Deyo) [“Answers must be complete and responsive. Thus, it is not proper to answer by stating, ‘See my deposition,’ ‘See my pleading,’ or ‘See the financial statement.’ ”].) Also, to the extent that Plaintiff states the interrogatory is not appropriate as the SAC had not yet been filed, such a response is improper for reasons stated above. Thus, Defendants are entitled to a code compliant further response.

Accordingly, the motion to compel a further response to SI No.2 is GRANTED.

SI No. 3

SI No. 3 asks Plaintiff if a specific individual or group of individuals were responsible for the decision not to select him for a clinical externship. Plaintiff objects in part on grounds that the interrogatory is burdensome, incompetent, and harassing. These objections are not justified in 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]; see also Williams v. Super. Ct. (2017) 3 Cal.5th 531, 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 interrogatory is vague, ambiguous, and unintelligible with respect to the meaning of “a clinical externship.” These objections are not well-taken. “Indeed, where the question is somewhat ambiguous, but the nature of the information sought is apparent, the proper solution is to provide an appropriate response.” (Deyo, supra, 84 Cal.App.3d at p. 783.) In addition, this is a “yes or no” question and Plaintiff, based on the operative pleading, is sufficiently aware of the meaning behind a clinical externship. Accordingly, these objections are overruled.

Finally, Plaintiff provides a substantive response claiming that all factual and legal contentions are stated in the SAC. However, as stated above, discovery necessarily involves testing the pleadings to determine what facts he relies upon to support his contentions. (Burke, supra, 71 Cal.2d at p. 281.) In fact, interrogatories provide an effective means of detecting false, fraudulent and sham claims and defenses which might otherwise be hidden behind evasive language in a party’s pleading. (Deyo, supra, 84 Cal.App.3d at p. 779.) Therefore, this answer is evasive and Defendants are entitled to a code compliant further response.

Consequently, the motion to compel a further response to SI No. 3 is GRANTED.

SI No. 4

SI No. 4 provides “If you contend a specific individual or group of individuals was responsible for the decision not to select you for a clinical externship, identify each person who you believe was responsible, and state each fact supporting that contention.” This is a follow up interrogatory to SI No. 3 and Plaintiff repeats many of the same objections. For reasons stated above, those objections are overruled. Also, to the extent that Plaintiff objects on grounds that the interrogatory was “asked and answered” and to “See Plaintiff’s response to RFA No. 6,” those objections are also overruled. (See Deyo, supra, 84 Cal.App.3d at pp. 783-784 [“[I]f a question does require the responding party to make reference to a pleading or document, the pleading or document should be identified and summarized so the answer is fully responsive to the question.”].) Defendants thus are entitled to a code compliant further response.

Accordingly, the motion to compel a further response to SI No. 4 is GRANTED.

SI No. 5

SI No. 5 asks Plaintiff to state all facts in support of the second cause of action. Plaintiff objects on grounds the interrogatory is burdensome, irrelevant, immaterial, incompetent, harassing and not calculated to lead to discovery of admissible evidence. These objections lack merit as this is a contention-based interrogatory and thus Defendants have a right to obtain facts from Plaintiff in support of the second cause of action. The objections therefore are overruled. Plaintiff also states the interrogatory is not appropriate as the SAC had not yet been filed. This response is unavailing for reasons stated above. Accordingly, Defendants are entitled to a code compliant further response.

Consequently, the motion to compel a further response to SI No. 5 is GRANTED.

SI No. 6

SI No. 6 asks Plaintiff to identify each witness with knowledge of any facts in support of the second cause of action. Plaintiff objects on grounds that the interrogatory has been “asked and answered” and that Defendants should see his response to FI No. 12.1. These are not valid objections for the reasons stated above and thus the objections are overruled. Plaintiff also states the interrogatory is not appropriate as the SAC had not yet been filed. This response is not persuasive for reasons stated above. Accordingly, Defendants are entitled to a code compliant further response.

Therefore, the motion to compel a further response to SI No. 6 is GRANTED.

SI No. 7

SI No. 7 provides “[d]o you (Plaintiff) contend that the College was not required to require its MLT students to participate in a clinical program?” Plaintiff objects to the interrogatory in part on grounds that it is burdensome, irrelevant, immaterial, incompetent, harassing, “asked and answered,” and that Defendants should see Plaintiff’s response to RFA No. 6. These objections are not justified in opposition and thus the objections are overruled. Plaintiff also objects on grounds that the interrogatory is vague, ambiguous, and unintelligible with respect to the meaning of “a clinical program.” These objections are overruled for reasons stated above in the Court’s discussion on the motion to compel a further response to SI No. 3. Finally, Plaintiff provides a substantive response claiming that all factual and legal contentions are stated in the operative pleading. The Court rejects this argument for the same reasons stated above. Accordingly, Defendants are entitled to a code compliant further response.

Consequently, the motion to compel a further response to SI No. 7 is GRANTED.

SI No. 8

If Plaintiff responds to SI No. 7 in the affirmative, then SI No. 8 asks him to state all facts in support that contention. The same arguments addressed to SI No. 7 also apply to this interrogatory. Therefore, for reasons stated above, the motion to compel a further response to SI No. 8 is GRANTED.

SI No. 10

SI No. 10 asks Plaintiff to identify each witness with knowledge of any facts in support of the third cause of action. Plaintiff objects on grounds that the interrogatory has been “asked and answered” and that Defendants should see his response to FI No. 12.1. These are not valid objections for the reasons stated above and thus the objections are overruled. Plaintiff also states the interrogatory is not appropriate as the SAC had not yet been filed. This response lacks merit for reasons stated above. Accordingly, Defendants are entitled to a code compliant further response.

Therefore, the motion to compel a further response to SI No. 10 is GRANTED.

SI No. 11

SI No. 11 asks Plaintiff to state each fact in support of his breach of contract claim. Plaintiff objects on grounds the interrogatory is overbroad, burdensome, irrelevant, immaterial, incompetent, harassing and not reasonably calculated to lead to the discovery of admissible evidence. These objections are not justified in opposition and thus the objections are overruled.

In addition, Plaintiff provides a substantive response claiming that all factual and legal contentions are stated in the operative pleading. The Court rejects this argument for the same reasons stated above. Finally, Plaintiff states the interrogatory is not appropriate as the SAC had not yet been filed. This response lacks merit for reasons stated above. Accordingly, Defendants are entitled to a code compliant further response.

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

SI No. 12

SI No. 12 asks Plaintiff to identify each witness with knowledge of any facts in support of his breach of contract claim. Plaintiff objects on grounds that the interrogatory has been “asked and answered” and that Defendants should see his response to FI No. 12.1. These are not valid objections for the reasons stated above and thus the objections are overruled. Plaintiff also states the interrogatory is not appropriate as the SAC had not yet been filed. This response lacks merit for reasons stated above. Accordingly, Defendants are entitled to a code compliant further response.

Therefore, the motion to compel a further response to SI No. 12 is GRANTED.

SI No. 13

SI No. 13 asks Plaintiff to state each fact in support of his claim for intentional infliction of emotional distress. Plaintiff objects on grounds the interrogatory is overbroad, burdensome, irrelevant, immaterial, incompetent, harassing and not reasonably calculated to lead to the discovery of admissible evidence. These objections are not justified in opposition and thus the objections are overruled.

In addition, Plaintiff provides a substantive response claiming that all factual and legal contentions are stated in the operative pleading. The Court rejects this argument for the same reasons stated above. Finally, Plaintiff states the interrogatory is not appropriate as the SAC had not yet been filed. This response lacks merit for reasons stated above. Accordingly, Defendants are entitled to a code compliant further response.

Consequently, the motion to compel a further response to SI No. 13 is GRANTED.

SI No. 14

SI No. 14 asks Plaintiff to identify each witness with knowledge of any facts in support of his claim for intentional infliction of emotional distress. Plaintiff objects on grounds that the interrogatory has been “asked and answered” and that Defendants should see his response to FI No. 12.1. These are not valid objections for the reasons stated above and thus the objections are overruled. Plaintiff also states the interrogatory is not appropriate as the SAC had not yet been filed. This response lacks merit for reasons stated above. Accordingly, Defendants are entitled to a code compliant further response.

Therefore, the motion to compel a further response to SI No. 14 is GRANTED.

SI No. 15

SI No. 15 asks Plaintiff to state each fact in support of his claim for punitive damages. Plaintiff objects on grounds the interrogatory is overbroad, burdensome, irrelevant, immaterial, incompetent, harassing and not reasonably calculated to lead to the discovery of admissible evidence. These objections are not justified in opposition and thus the objections are overruled.

In addition, Plaintiff provides a substantive response claiming that all factual and legal contentions are stated in the operative pleading. The Court rejects this argument for the same reasons stated above. Finally, Plaintiff states the interrogatory is not appropriate as the SAC had not yet been filed. This response lacks merit for reasons stated above. Accordingly, Defendants are entitled to a code compliant further response.

Consequently, the motion to compel a further response to SI No. 15 is GRANTED.

SI No. 16

SI No. 12 asks Plaintiff to identify each witness with knowledge of any facts in support of his claim for punitive damages. Plaintiff objects on grounds that the interrogatory has been “asked and answered” and that Defendants should see his response to FI No. 12.1. These are not valid objections for the reasons stated above and thus the objections are overruled. Plaintiff also states the interrogatory is not appropriate as the SAC had not yet been filed. This response lacks merit for reasons stated above. Accordingly, Defendants are entitled to a code compliant further response.

Therefore, the motion to compel a further response to SI No. 16 is GRANTED.

SI No. 17

SI No. 17 asks Plaintiff if the individual defendants acted with oppression, fraud, or malice. Plaintiff objects to the interrogatory in part on grounds that it is burdensome, irrelevant, immaterial, incompetent, harassing and not reasonably calculated to lead to the discovery of admissible evidence. These objections are not justified in opposition and thus the objections are overruled.

Plaintiff also objects on grounds that the terms “oppression, fraud, or malice” are vague, ambiguous, and unintelligible. These terms are commonly addressed to a claim for punitive damages. Such terms are not so vague and ambiguous so as to prevent Plaintiff from providing a substantive response to this interrogatory. On that basis, the objections are overruled. Finally, Plaintiff provides a substantive response claiming that all factual and legal contentions are stated in the operative pleading. The Court rejects this argument for the same reasons stated above. Accordingly, Defendants are entitled to a code compliant further response.

Therefore, the motion to compel a further response to SI No. 17 is GRANTED.

SI No. 18

If Plaintiff responds to SI No. 17 in the affirmative, then SI No. 18 asks him to identify which individual defendant acted with oppression, fraud, or malice and state all facts in support of that contention. Plaintiff objects to the interrogatory in part on grounds that it is burdensome, irrelevant, immaterial, incompetent, harassing, violates Code of Civil Procedure section 2030.060, subdivision (f) and not reasonably calculated to lead to the discovery of admissible evidence. These objections are not justified in opposition and thus the objections are overruled.

Plaintiff also objects on grounds that the terms “oppression, fraud, or malice” are vague, ambiguous, and unintelligible. These objections are overruled for reasons stated above. Finally, Plaintiff provides a substantive response claiming that all factual and legal contentions are stated in the operative pleading. The Court rejects this argument for the same reasons stated above. Accordingly, Defendants are entitled to a code compliant further response.

Therefore, the motion to compel a further response to SI No. 18 is GRANTED.

Disposition

The motion to compel a further response to SI Nos. 1, 2, 3, 4, 5, 6, 7, 8, 10, 11, 12, 13, 14, 15, 16, 17, and 18 is GRANTED. Plaintiff shall serve verified code compliant further responses, without objections, to Defendants within 20 calendar days of this Order.

Motion to Compel Further Responses to FI

Defendants seek a further response to FI Nos. 6.3, 6.4, 6.5, 6.6, 6.7, 9.2, 10.2, 10.3, and 11.1 because the answers are incomplete and the objections raised are without merit.

FI No. 6.3

FI No. 6.3 asks Plaintiff if he has any complaints attributable to the incident. If so, subparts (a) through (c) request additional information. Plaintiff objects in part on grounds the interrogatory is burdensome, irrelevant, immaterial, incompetent, harassing, and not reasonably calculated to lead to the discovery of admissible evidence. These objections are not justified in opposition and thus the objections are overruled.

Plaintiff also objects on the ground that the interrogatory improperly seeks information privileged under the Health Insurance Portability and Accountability Act (“HIPAA”). “In enacting HIPAA, Congress expressed its concern for protecting the integrity and confidentiality of personal medical records, and for preventing the unauthorized use or disclosure of such records. [Citation.] Responding to the congressional mandate, DHHS promulgated comprehensive regulations to protect the privacy of personal medical records.” (Bugarin v. Chartone, Inc. (2006) 135 Cal.App.4th 1558, 1561-1562.) However, as Defendants persuasively point out, HIPAA only prohibits covered entities from disclosing protected health information. (See 45 C.F.R. § 164.508, subd. (a) [“Except as otherwise permitted or required by this subchapter, a covered entity may not use or disclose protected health information without an authorization that is valid under this section.”].) “Covered entities” include health insurance plans and health care providers. (See 45 C.F.R. § 160.103.) Plaintiff is not considered a covered entity and, since Defendants are seeking information directly from him, the HIPAA does not apply. Accordingly, Defendants are entitled to a code compliant further response.

Therefore, the motion to compel a further response to FI No. 6.3 is GRANTED.

FI Nos. 6.4, 6.5, 6.6, 6.7

FI Nos. 6.4., 6.5, 6.6, and 6.7 and related subparts ask Plaintiff if he received treatment from a health care provider, took medication as a result of his injuries from the incident, or whether he required additional medical services not previously listed. The same arguments addressed to FI No. 6.3 also apply to these interrogatories. Therefore, for reasons stated above, the motion to compel a further response to FI Nos. 6.4., 6.5, 6.6, and 6.7 is GRANTED.

FI No. 9.2

FI No. 9.2 asks Plaintiff if he has any documents to support damages claimed in FI No. 9.1. If so, Plaintiff is directed to describe the document and state the name and contact information of each person who has the document.

Plaintiff objects in part on grounds that the interrogatory is argumentative, overbroad, and burdensome. These objections are not justified in opposition and thus the objections are overruled. Plaintiff also objects on the ground that the interrogatory violates the work product doctrine.

“The attorney work product doctrine absolutely protects from discovery writings that contain an ‘attorney’s impressions, conclusions, opinions, or legal research or theories.’ [Citation.]” (League of California Cities v. Super. Ct. (2015) 241 Cal.App.4th 976, 993.) “The purpose of the attorney work product doctrine is to preserve the rights of attorneys in the preparation of their cases and to prevent attorneys from taking advantage of the industry and creativity of opposing counsel.” (Ibid.) “Whether specific material is protected work product must be resolved on a case-by-case basis.” (Ibid.) “The person claiming protection under the attorney work product doctrine bears the burden of proving the preliminary facts to show the doctrine applies.” (Ibid.)

Plaintiff however has not established preliminary facts to show that the work product doctrine is applicable to this interrogatory. Furthermore, Defendants have admitted that they are not requesting disclosure of privileged information such as legal research or theories. (See Defendants’ Separate Statement at p. 33.) Therefore, the objection is overruled and Defendants are entitled to a code compliant further response.

Consequently, the motion to compel a further response to FI No. 9.2 is GRANTED.

FI No. 10.2

FI No. 10.2 asks Plaintiff to list all physical, mental, and emotional disabilities he had immediately before the incident. Plaintiff objects in part on grounds the interrogatory is irrelevant, immaterial, incompetent, harassing and not reasonably calculated to lead to the discovery of admissible evidence. These objections are not justified in opposition and thus the objections are overruled. Plaintiff’s objection based on HIPAA is overruled for reasons stated above.

In addition, Plaintiff provides the following substantive response: “Plaintiff is not a specialist on the disabilities, and may suffer from the disabilities he is not aware of.” (See Defendants’ Separate Statement at p. 33.) This response is somewhat evasive. To the extent that Plaintiff is unable to list any physical, mental, or emotional disabilities, he should say so in an objection-free code compliant further response. Defendants therefore are entitled to a further response.

Accordingly, the motion to compel a further response to FI No. 10.2 is GRANTED.

FI No. 10.3

FI No. 10.3 asks Plaintiff if he sustained injuries following the incident for which he is now claiming damages. The interrogatory requests additional information in subparts (a) through (e).

Plaintiff objects in part on grounds the interrogatory is irrelevant, immaterial, incompetent, harassing and not reasonably calculated to lead to the discovery of admissible evidence. These objections are not justified in opposition and thus the objections are overruled. Plaintiff’s objection based on HIPAA is overruled for reasons stated above.

Plaintiff also provides the following substantive response: “Plaintiff did sustain the severe emotional distress as a result of denial of training necessary to complete the MLT program.” (See Defendants’ Separate Statement at p. 35.) This response is incomplete as Plaintiff fails to provide answers to subparts (a) through (e). Defendants therefore are entitled to a code compliant further response.

Consequently, the motion to compel a further response to FI No. 10.3 is GRANTED.

FI No. 11.1

FI No. 11.1 asks whether Plaintiff has filed an action or made a written claim or demand for compensation for personal injuries in the past 10 years. If so, the interrogatory requests additional information in subparts (a) through (f).

Plaintiff objects in part on grounds the interrogatory is overbroad, immaterial, incompetent, and harassing. Plaintiff does not justify these objections in opposition and thus the objections are overruled.

Plaintiff also objects on the ground that the term “personal injuries” is not defined and may include both physical and non-physical injuries. In doing so, Plaintiff appears to argue that this term is vague and ambiguous. The Court does not find the term “personal injuries” to be so be vague so as to prevent Plaintiff from providing a substantive response. Defendants are simply asking whether Plaintiff has filed an action for personal injuries in the last 10 years. Such information appears relevant to claims arising from the SAC and thus Defendants are entitled to a code compliant further response.

Accordingly, the motion to compel a further response to FI No. 11.1 is GRANTED.

Disposition

The motion to compel a further response to FI Nos. 6.3, 6.4, 6.5, 6.6, 6.7, 9.2, 10.2, 10.3, and 11.1 is GRANTED. Plaintiff shall serve verified code compliant further responses, without objections, to Defendants within 20 calendar days of this Order.

Motion to Compel Further Responses to RPD

Defendants move to compel a further response to RPD Nos. 1, 11, and 12 because the objections raised lack 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., § 2031.310-320; Weil & Brown, California Practice Guide: Civil Procedure Before Trial (Rutter Group 2018) at § 8:1495.)
RPD No.1

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.)

RPD No. 1 seeks all documents submitted by Plaintiff to any entity as part of his obligation to comply with the Tort Claims Act. The Court has examined the separate statement submitted by Defendants in support of their motion. Defendants fail to articulate any good cause for production with respect to RPD No.1.

Accordingly, the motion to compel a further response to RPD No. 1 is DENIED.

RPD No. 11

RPD No. 11 seeks documents and communications, including emails, which support Plaintiff’s prayer for punitive damages. There is good cause for production as such documents are relevant to support Plaintiff’s claim for damages against Defendants. Plaintiff’s objections are not justified in opposition and thus the objections are overruled. Without waiving objections, Plaintiff provides a substantive response claiming he will accomplish a reasonable search for all correspondence in his possession. (See Defendants’ Separate Statement at p. 39.) Despite this response, it is unclear if Plaintiff in fact has served documents responsive to this request. Defendants therefore are entitled to a code compliant further response.

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

RPD No. 12

RPD No. 12 seeks documents and communications, including emails, between Plaintiff and his healthcare provider or third party, to support his contention that he suffered emotional distress. There is good cause for production as such documents are relevant to support Plaintiff’s claim for damages against Defendants. Plaintiff’s objections are not justified in opposition and thus the objections are overruled. In addition, Plaintiff’s objection based on HIPAA is overruled for reasons stated above. Defendants therefore are entitled to a code compliant further response.
Accordingly, the motion to compel a further response to RPD No. 12 is GRANTED.

Disposition

The motion to compel a further response to RPD No.1 is DENIED.

The motion to compel a further response to RPD Nos. 11 and 12 is GRANTED. Plaintiff shall serve verified code compliant further responses, without objections, and produce all responsive documents to Defendants within 20 calendar days of this Order.

Request for Discovery Referee

In both the moving papers and the reply brief, Defendants request that the Court appoint a discovery referee in this action. (See Memo of P’s & A’s at p. 2, fn.2; Reply Brief at p. 7.)

“When the parties do not consent, the court may, upon the written motion of any party, or of its own motion, appoint a referee … [w]hen the court in any pending action determines that it is necessary for the court to appoint a referee to hear and determine any and all discovery motions and disputes relevant to discovery in the action and to report findings and make a recommendation thereon.” (Code Civ. Proc., §639, subd. (a)(5).)

“Unless both parties have agreed to a reference, the court should not make blanket orders directing all discovery motions to a discovery referee except in the unusual case where a majority of factors favoring reference are present. These include: (1) there are multiple issues to be resolved; (2) there are multiple motions to be heard simultaneously; (3) the present motion is only one in a continuum of many; (4) the number of documents to be reviewed (especially in issues based on assertions of privilege) make the inquiry inordinately time-consuming.” (Taggares v. Super. Ct. (1998) 62 Cal.App.4th 94, 105.)

Defendants have not made the requisite showing that the appointment of a discovery referee is necessary under the circumstances. Accordingly, Defendants’ request to appoint a discovery referee pursuant to Code of Civil Procedure section 639 is DENIED.

Request for Monetary Sanctions

Defense counsel requests an award of monetary sanctions in support of the motion to compel. The court shall impose a monetary sanction against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further responses to interrogatories or inspection demands 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. (Code Civ. Proc., §§ 2030.300, subd. (d), 2031.310, subd. (h).)

As preliminary matter, “[a] request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought.” (Code Civ. Proc., § 2023.040.) The notice of motion is deficient as it fails to specifically identify that Defendants are seeking monetary sanctions against Plaintiff. Furthermore, the request for monetary sanctions in an amount exceeding $20,000 (see Hemati Decl. in Reply at ¶ 10.) is incredibly excessive given the basic discovery requests at issue in this case.

Accordingly, the request for monetary sanctions is DENIED.