Case Name: Seyed Javadi v. West Valley Precision, Inc., et al.

Case No.: 18CV327068

(1) Motion to Compel Further Responses to Plaintiff’s Demand for Inspection of His Former Workplace
(2) Motion for Protective Order

Factual and Procedural Background

This is a wrongful termination case. On November 8, 2017, defendant West Valley Precision, Inc. (“WVP”) hired plaintiff Seyed Javadi (“Plaintiff”) as its Quality Manager. (Complaint at ¶ 8.) WVP agreed to pay Plaintiff an annual compensation of $160,000 along with bonuses tied to growth and benefits. (Id. at ¶¶ 8-9.) Plaintiff commenced his employment on November 9, 2017. (Id. at ¶ 11.)

During his employment, Plaintiff protested and opposed unsafe and unhealthy working conditions, which he advocated to be eliminated. (Complaint at ¶ 11.) These conditions included but were not limited to the following:

• Plumes of non-ventilated gas and smoke within the factory part of the machine shop, improper ventilation, broken fans, use of machines beyond their intended limit, and metal nano-particles in the air. Several employees wore gas masks as the air quality was so bad.
• A deafeningly loud noise level.
• Use of a “dry cutting” method of cutting metal, which is inferior, unsafe and not suitable to cut heavy duty machinery. This produces unsafe amounts of particulate matter and heat, and could cause flying shards of metal to injure workers.
• Lack of proper safety equipment.

(Ibid.)

When Plaintiff questioned these unsafe practices, he was told by management that there was no choice. (Complaint at ¶ 12.) Thereafter, Plaintiff was terminated from his employment for protesting unsafe and unhealthy working conditions and protesting defendants’ violations of wage and hour laws. (Id. at ¶¶ 19, 22, 23.)

On April 24, 2018, Plaintiff filed the operative Complaint against defendants alleging causes of action for: (1) wrongful termination in violation of public policy; (2) retaliation in violation Labor Code § 1102.5; (3) retaliation in violation of Labor Code § 6310; (4) unpaid wages; (5) accrual of waiting time penalties pursuant to Labor Code § 203; (6) fraud; (7) negligent misrepresentation; and (8) defamation.

On July 27, 2018, defendants WVP, Kevin Krueger (“Krueger”), and Dane Madsen (“Madsen”) filed a demurrer and motion to strike Plaintiff’s complaint.

On September 28, 2018, the court overruled defendants’ demurrer and denied defendants’ motion to strike.

On October 17, 2018, defendants WVP, Krueger, and Madsen filed an answer to Plaintiff’s complaint.

I. Plaintiff’s motion to compel further responses to demand for inspection of his former workplace is GRANTED, in part, and defendant WVP’s motion for protective order is GRANTED, in part.

A. Discovery dispute.

On June 25, 2018, Plaintiff propounded, upon defendant WVP, a demand for inspection of his former workplace, located at 2055 O’Toole Avenue in San Jose. Specifically, the demand requested “Plaintiff Seyed Javadi and his attorneys be permitted to enter Defendant’s business located at 2055 O’Toole Ave., San Jose, CA 95131-1300 in order to inspect, photograph and videotape all of Plaintiff’s former work locations and environs.”

On July 30, 2018, defendant WVP served a response to Plaintiff’s demand for inspection, asserting objections only.

On August 6, 2018, Plaintiff’s counsel sent defense counsel a meet and confer letter. On August 12, 2018, defense counsel responded with a letter standing on the objections.

Between August 14, 2018 and August 21, 2018, the parties’ counsel continued to meet and confer without resolution.

On August 30, 2018, Plaintiff filed the instant motion to compel defendant WVP’s further response to Plaintiff’s demand for inspection.

On November 12, 2018, defendant WVP served a supplemental response to Plaintiff’s demand for inspection, continuing to assert objections only.

On November 20, 2018, defendants WVP, Krueger, and Madsen filed the instant motion for protective order.

B. Merits.

Upon receipt of a response to a demand for inspection, including requests for the production of documents, the demanding party may move for an order compelling further response to the demand if the demanding party deems that any of the following apply:

1. A statement of compliance with the demand is incomplete.
2. A representation of inability to comply is inadequate, incomplete, or evasive.
3. An objection in the response is without merit or too general.

(Code Civ. Proc., §2031.310, subd. (a)(1) – (3).)

The motion for order compelling further responses “shall set forth specific facts showing good cause justifying the discovery sought by the inspection demand.” (Code Civ. Proc., §2031.310, subd. (b)(1); Kirkland v. Sup. Ct. (2002) 95 Cal.App.4th 92, 98 (Kirkland).) To establish “good cause,” the burden is on the moving party to show both relevance to the subject matter (e.g., how the information in the documents would tend to prove or disprove some issue in the case) and specific facts justifying discovery (e.g., why such information is necessary for trial preparation or to prevent surprise at trial). (Glenfed Develop. Corp. v. Sup. Ct. (1997) 53 Cal.4th 1113, 1117.) Where the moving party establishes “good cause,” the burden shifts to the responding party to justify its objections. (Kirkland, supra, 95 Cal.App.4th at p. 98.)

Plaintiff’s motion to compel further responses originally came on for hearing on December 6, 2018 at which time the court expressed an inclination to grant Plaintiff’s motion to compel a further response and to order a limited inspection of Plaintiff’s former workplace. However, the court continued the hearing on Plaintiff’s motion to compel in light of defendants’ motion for protective order.

“When an inspection, copying, testing, or sampling of documents, tangible things, places, or electronically stored information has been demanded, the party to whom the demand has been directed, and any other party or affected person, may promptly move for a protective order.” (Code Civ. Proc., §2031.060, subd. (a).) “The court, for good cause shown, may make any order that justice requires to protect any party or other person from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” (Code Civ. Proc., §2031.060, subd. (b).)

In deciding whether there is good cause for a protective order, a court should evaluate whether the moving party has made “a factual exposition of a reasonable ground for the order sought.” (Goodman v. Citizens Live & Cas. Ins. Co. (1967) 253 Cal.App.2d 807, 819.) The moving party carries the burden of proving the existence of such a reasonable ground by a preponderance of the evidence. (Standish v. Superior Court (1999) 71 Cal.App.4th 1130, 1145.) In deciding whether the moving party has met her burden, a court should accord no evidentiary weight to declarations containing conclusory statements that the discovery sought is calculated to cause unwarranted annoyance, embarrassment, or oppression. (People v. Superior Court (1967) 248 Cal.App.2d 276, 281.) In granting a motion for a protective order, a court should craft an order that is no broader than necessary to address the specific harm that the moving party seeks by its motion to avoid. (Norton v. Superior Court (1994) 24 Cal.App.4th 1750, 1761.)

In support of the motion for protective order, defendant WVP argues the nature of its business involves working on products that are trade secrets of its customers and Plaintiff should not be allowed to photograph or videotape such trade secrets. Initially, defendant WVP submitted only the declaration of its counsel who proffered no admissible evidence to support the assertion that defendant WVP’s business involves working on products that are trade secrets.

In a supplemental declaration filed by defendant WVP’s counsel on December 26, 2018, defendant’s counsel again fails to proffer any evidence to support the assertion that WVP’s business involves working on products that are trade secrets. Instead, defendant’s counsel devotes a significant portion of his declaration towards disputing the factual claims made in Plaintiff’s complaint. The court does not find this discussion to be relevant.

Also on December 26, 2018, defendant WVP filed the declaration by Madsen who similarly devotes much of his declaration to disputing Plaintiff’s claims. With regard to whether WVP’s business involves trade secrets of its customers, Madsen declares that he is a co-owner and office manager of defendant WVP. At paragraphs 22 – 24, defendant Madsen declares WVP “has contracts with its customers that involvement [sic] NDA’s (Non-Disclosure Agreements) that require [WVP] to maintain secrecy about the parts that are being made. [WVP] needs to maintain, and does maintain, its building as a restricted access area that prevents access to any unauthorized person. [WVP] has contracts with government subcontractors, and with military contractors, and the information that is involved in those contracts is of a highly confidential level nature.”

In opposition, Plaintiff objects to Madsen’s statements and contends WVP has not carried its burden of demonstrating that the products manufactured by WVP are trade secret or that government clearance is required to inspect WVP’s premises. While there is insufficient evidence that government clearance is required to inspect WVP’s premises, the court is persuaded that the products manufactured by WVP for its customers are the subject of some effort to maintain their secrecy and, thus, potentially trade secret. While this is not a case involving trade secrets, WVP customers are entitled to maintain the secrecy of their products. Even so, the court is of the opinion that any potential harm from an inspection can be mitigated. An inspection of WVP’s premises by Plaintiff is warranted subject to some restrictions.

Accordingly, Plaintiff’s motion to compel further responses to demand for inspection of his former workplace is GRANTED, in part, and defendant WVP’s motion for protective order is GRANTED, in part. Plaintiff and his attorneys shall be allowed to inspect defendant WVP’s business located at 2055 O’Toole Ave., San Jose, CA 95131-1300 on a mutually convenient date and time to take place no later than 30 calendar days from entry of this order. The inspection shall occur during defendant WVP’s normal operating business hours but shall be limited to two hours. Plaintiff shall be allowed to photograph and videotape during the inspection, but shall not take photographs or video of defendant WVP’s employees or of any of the customer products manufactured by defendant WVP. Use of any photographs/ video taken during the inspection shall be for litigation only and shall be surrendered to defendant WVP upon conclusion of this case.

On the issue of sanctions, Code of Civil Procedure section 2031.310, subdivision (h) mandates an award of monetary sanctions “against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further responses to a demand, 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 of Civil Procedure section 2031.060, subdivision (h) states, “the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion for a protective order, 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.”

In conjunction with Plaintiff’s motion to compel further responses, both sides requested the court impose monetary sanctions against the other. In opposition to defendants’ motion for protective order, Plaintiff also requests the court impose monetary sanctions. Since neither side prevailed entirely on their respective motion, the court is not inclined to award monetary sanctions under the circumstances. Accordingly, Plaintiff’s request for monetary sanctions is DENIED.