Yvonne Saldana vs Brown & Brown Insurance Services of California Inc et al

Case Number

21CV02909

Case Type

Hearing Date / Time

Mon, 10/23/2023 - 10:00

Nature of Proceedings

Motion: Compel Compliance; and Request for Sanctions in the Amount of $5,000; Motion: Compel Deposition and Request for Sanctions

Tentative Ruling

Yvonne Saldana v. Brown and Brown Insurance Services of California Inc., et al.

Case No. 21CV02909

           

Hearing Date: October 23, 2023                                                         

MATTER:                (1) Plaintiff’s Motion To Compel Deposition And Request For Sanctions

                                    (2) Plaintiff’s Motion To Compel Compliance And Request For Sanctions

                                   

ATTORNEYS:        For Plaintiff Yvonne Saldana: Elliot J. Siegel, Margaret R. Wright, Tiffany Nguyen, King & Siegel LLP

For Defendants Brown & Brown Insurance Services of California, Inc., Brown & Brown, Inc., and John Esposito: Daniel B. Chammas, Jennifer S. McGeorge, Hilda Aguilar, Ford & Harrison LLP

TENTATIVE RULING:

(1) The motion of plaintiff to compel deposition is denied as moot.

(2)  The motion of plaintiff to compel compliance is denied.

Background:

Plaintiff Yvonne Saldana’s original verified complaint filed in this matter on July 20, 2021, alleges nine causes of action against defendants Brown & Brown Insurance Services of California, Inc. (Brown Insurance), Brown & Brown, Inc. (Brown & Brown), and John Esposito (Esposito) (collectively, defendants): (1) sex/gender discrimination in violation of Government Code section 12900 et seq. (the California Fair Employment and Housing Act or FEHA); (2) race discrimination in violation of FEHA; (3) disability discrimination in violation of FEHA; (4) interference in violation of the California Family Rights Act (CFRA); (5) retaliation in violation of FEHA and CFRA; (6) failure to prevent discrimination and retaliation in violation of FEHA; (7) wrongful termination in violation of public policy; (8) violations of Labor Code section 1197.5; and, (9) failure to provide complete and accurate wage statements.

On September 16, 2021, defendants filed their verified answer to plaintiff’s complaint. On September 28, 2021, defendants filed their first amended verified answer to plaintiff’s complaint.

On January 3, 2022, the Court sustained the demurrer of plaintiff to the first amended answer of defendants, with leave to amend, as to the fourth, fifth (with respect to equitable defenses), tenth, twentieth, thirty-first, and thirty-second affirmative defenses. The Court overruled the demurrer in all other respects.

On January 18, 2022, defendants filed their second amended verified answer to plaintiff’s complaint.

On July 24, 2023, the Court granted plaintiff leave to file a first amended complaint (FAC) to add a cause of action for age discrimination in violation of FEHA. (See July 24, 2023, Minute Order.) On July 25, 2023, plaintiff filed her operative FAC adding a tenth cause of action for age discrimination in violation of FEHA. As alleged in the FAC which is the operative pleading:

Plaintiff, who is a 61-year-old Hispanic woman, worked for defendants as an account manager from June 2015 until April 30, 2021. (FAC, ¶¶ 1, 9.) In January 2021, plaintiff’s manager and direct supervisor, Kim Magno (Magno), began to target plaintiff based on “discriminatory assumptions about her work based on gendered and ethnocentric stereotypes about [plaintiff’s] ability to prioritize work over familial obligations[.]” (Id. at ¶ 11.) Plaintiff was fired while on disability leave after she complained of the harassment and discrimination by Magno. (Id. at ¶¶ 31-37.)

On June 12, 2023, plaintiff filed a motion to compel defendants to produce Magno for a second day of deposition (the Magno motion) and a motion to compel Brown Insurance to comply with an agreement to produce documents in response to plaintiff’s request for production of documents (the motion to compel). The Magno motion and the motion to compel were opposed by Brown Insurance.

As further discussed in the Court’s August 7, 2023, Minute Order (the Minute Order), on August 6, 2021, plaintiff served a first set of requests for production of documents (RFP) on Brown Insurance to which Brown Insurance responded on October 18, 2021 (the original responses). (Siegel Decl. (motion to compel), ¶ 7 & Exhs. A & B.) Following efforts by plaintiff to meet and confer regarding the original responses, Brown Insurance served a set of first amended responses on January 14, 2022 (the first amended responses), a set of second amended responses on March 2, 2022 (the second amended responses), and a set of third amended responses on September 9, 2022 (the third amended responses). (Id. at ¶ 7 & Exh. C.)

In addition, Plaintiff took Magno’s deposition on January 17, 2023. (Siegel Decl. (Magno motion), ¶ 5 & Exh. D.) Plaintiff also deposed Elaine Lin (Lin) and Terry Buelow (Buelow), who were each involved with plaintiff’s termination and with responding to plaintiff’s complaint, and Allison Olsen (Olsen). (Id. at ¶¶ 6-8 & Exhs. E-G.)

Following the Magno, Lin, Buelow, and Olsen depositions, the parties corresponded by email regarding testimony that plaintiff contends demonstrates missing categories of documents responsive to various RFP, inadequate searches for responsive documents, and the purported existence of responsive documents that were not produced by Brown Insurance. (Siegel Decl. (motion to compel), ¶ 9 & Exh. H.)

Due to procedural problems and missing information necessary to enable the Court to determine the motion to compel, the Court continued the hearing on the motion to compel to September 11, 2023, and ordered plaintiff to file and serve a supplemental brief on or before August 21, 2023, setting forth, on a point-by-point basis with citations to evidence, all factual and legal grounds for the order requested by plaintiff. (See Minute Order.) The Court also ordered Brown Insurance to file any response to plaintiff’s supplemental brief on or before September 1, 2023. In addition, the Court continued the hearing on the Magno motion to September 11, 2023, for reasons further discussed in the Minute Order. (Ibid.)

On August 21, 2023, plaintiff filed a supplemental brief in support of her motion to compel asserting that defendants informed plaintiff that they planned to conduct the searches for documents at issue in the motion to compel and to produce outstanding documents by September 15, 2023. (Pl. Supp. Brief, p. 1, ll. 4-6.) Defendants also agreed to schedule the second session of Magno’s deposition for October 4, 2023. (Id. at ll. 6-7.) Plaintiff also asserts that on August 17, 2023, the parties entered into a stipulation to continue the hearing on the motion to compel and Magno motion to no earlier than October 21, 2023, and to continue related briefing deadlines so that the parties could informally resolve any remaining issues. (Id. at ll. 8-11.)

On August 22, 2023, the parties filed a joint stipulation stating that defendants have served a supplemental document production and are conducting further searches for records. (Aug. 22, 2023, Joint Stipulation, p. 2, ll. 17-19.) The parties further assert that Brown Insurance will complete its supplemental document production by September 15, 2023, and that Magno’s continued deposition would take place on October 4, 2023. (Id. at p. 3, ¶¶ 1 & 2.) On August 22, 2023, the Court ordered that the hearing date on the motion to compel and Magno motion be continued to October 23, 2023, that plaintiff file a supplemental brief regarding the motion to compel on October 2, 2023, and that Brown Insurance file any response to plaintiff’s supplemental brief on October 13, 2023. (Aug. 22, 2023, Order.)

On August 24, 2023, defendants filed an answer to the FAC generally denying its allegations and asserting thirty-seven affirmative defenses.

On October 2, 2023, plaintiff filed a second supplemental brief in support of the motion to compel. On October 13, 2023, Brown Insurance filed its response to plaintiff’s supplemental brief. Plaintiff has not filed a supplemental brief in support of the Magno motion.

Analysis:

(1) The Magno Motion

Plaintiff has not submitted a supplemental brief addressing what if any issues remain with regard to plaintiff’s request for an order that Brown Insurance produce Magno for a second day of deposition. Moreover, there is no information to suggest that the continued deposition of Magno, as requested by plaintiff in the Magno motion, did not proceed or conclude on October 4, 2023, as further discussed above.

When, as here, a responding party provides discovery requested in a motion to compel discovery and the moving party proceeds with the motion, the court has substantial discretion to rule on the motion based on the circumstances of the case. (See Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 408-409.) For example, the court may take the motion off-calendar, deny the motion as moot, or narrow the scope of the motion to the issue of sanctions. (Id. at p. 409; see also Cal. Rules of Court, rule 3.1348(a).)

For all reasons discussed above, available information indicates that Magno’s second deposition went forward on October 4, 2023, as requested in the Magno motion and as ordered by the Court. Therefore, the Court will deny the Magno motion as moot.

(2) The Motion to Compel

 

Plaintiff’s motion to compel is brought under Code of Civil Procedure section 2031.320, subdivision (a), which provides that “[i]f a party filing a response to a demand for inspection, copying, testing, or sampling under Sections 2031.210, 2031.220, 2031.230, 2031.240, and 2031.280 thereafter fails to permit the inspection, copying, testing, or sampling in accordance with that party’s statement of compliance, the demanding party may move for an order compelling compliance.” (Code Civ. Proc., § 2031.320, subd. (a).)

In the Minute Order, the Court noted the significant confusion created by plaintiff’s failure to clearly identify which specific statement or statements of compliance in response to which RFP are at issue considering that Brown Insurance has served four sets of responses to the RFP, including amended responses, as further discussed above. The Court further noted that the first amended responses and third amended responses to the RFP were misnumbered and that plaintiff failed to identify the specific statements of compliance at issue in the motion to compel. Therefore, the Court was unable to determine whether Brown Insurance failed to produce documents in accordance with a particular statement of compliance. (Code Civ. Proc., § 2031.320, subd. (a).)

In the supplemental brief filed on October 2, 2023, plaintiff asserts that Brown Insurance has failed to produce documents in accordance with statements of compliance contained in its responses to RFP Nos. 2, 3, 4, 5, 34, 35, 36, 37, 38, 39, 49, 50, 51, 76, 78, 79, 81, 82, 96, 97, 100, 101, 102, 119, 120, 121, and 124. (See Pl. Supp. Brief., pp. 1, 3, 4, 5, 6.) Though plaintiff has set forth the number of each RFP at issue, plaintiff has not set forth the text of each RFP as required by the Minute Order, instead offering plaintiff’s conclusory description of the general category or type of documents sought in groupings of what plaintiff appears to contend are substantively similar RFP. (Ibid.)

In addition, plaintiff has failed to set forth the text of Brown Insurance’s original responses to the RFP at issue or, to the extent they exist, any first amended responses, second amended responses, or third amended responses to each RFP at issue as ordered by the Court. Instead, plaintiff generally describes the substance of each purported statement of compliance and refers collectively to the date of the responses. For reasons discussed below, available information indicates that the dates of Brown Insurance’s responses to the RFP at issue as set forth by plaintiff in the supplemental brief do not, in each instance, correspond to the dates of each operative response. Plaintiff’s failure to set forth the text of each of Brown Insurance’s responses or amended responses to the RFP at issue has created additional uncertainty and confusion that inhibits the Court’s ability to efficiently determine whether Brown Insurance has failed to produce documents in accordance with any statement of compliance.

For example, plaintiff contends that Brown Insurance served “amended responses” to RFP Nos. 49 through 51 on February 17, 2022, in which Brown Insurance generally agreed to produce non-privileged responsive documents in its possession, custody, or control. (Pl. Supp. Brief, p. 3, ll. 21-25.) The information offered by plaintiff in the motion to compel indicates that Brown Insurance did not serve “amended” responses to RFP Nos. 49 through 51 on February 17, 2023 (or to any of the RFP at issue). (See Siegel Decl. (motion to compel), ¶ 7 & Exh. C.) The same problem exists with regard to RFP Nos. 78, 79, 81, and 82. (See Pl. Supp. Brief, p. 5, ll. 22-25; Siegel Decl. (motion to compel), ¶ 7 & Exh. C.) For these reasons, the Court is unable to locate or review the specific text of the operative responses to RFP Nos. 49 through 51, 78, 79, 81, or 82, in order to determine whether the responses include statements of compliance, also considering the misnumbering of the responses and plaintiff’s failure to set forth the precise text of the purported “amended” responses that were served on February 17, 2023.

Plaintiff also contends that Brown Insurance’s original responses to RFP Nos. 2, 3, 4, 5, 76, 96, 97, 100, 101, 102, 119, and 120 include a statement of compliance for purposes of the present motion. (See Pl. Supp. Brief, p. 1, ll. 9-12 [referencing responses served on October 18, 2021].) In addition, plaintiff identifies the first amended responses to RFP Nos. 121 and 124,  and the third amended responses to RFP Nos. 34 through 39 as the operative responses for purposes of the present motion. (Id. at p. 4, ll. 18-22 [identifying amended responses served on September 9, 2022]; p. 6, ll. 12-14 [identifying amended responses served on January 14, 2022].) Plaintiff’s failure to comply with the Minute Order by setting forth the text of the operative responses presents a significant problem because information provided by Brown Insurance indicates that plaintiff’s general summaries of the substance of Brown Insurance’s responses to RFP Nos. 2 through 5, 34 through 39, 76, 96, 97, 100, 101, 102, 119 through 121, and 124 are inaccurate.

For example, Brown Insurance effectively asserts that, in addition to its original responses, it served first amended responses to RFP Nos. 2, 3, 4, 5, 76, 96, 97, 100, 102, 119, and 120, agreeing to produce responsive documents subject to objections. (Def. Supp. Brief, p. 2, ll. 10-12; p. 6, ll. 14-16.) Plaintiff’s summary of the responses to these RFP also indicates that Brown Insurance asserted objections to these RFP based on privilege. Plaintiff’s failure to set forth the specific text of the operative responses to RFP Nos. 2, 3, 4, 5, 76, 96, 97, 100, 102, 119, and 120, including any objections thereto, prevents the Court from determining whether, as plaintiff contends, Brown Insurance has failed to produce any documents responsive to these RFP in accordance with a statement of compliance. (See, e.g., Standon Co. v. Superior Court (1990) 225 Cal.App.3d 898, 901 (Standon) [meritorious objections such as those based on privilege or lack of good cause constitute “substantive bars to compelled production”].)

Moreover, to the extent plaintiff contends that any objections asserted in response to RFP Nos. 2, 3, 4, 5, 76, 96, 97, 100, 102, 119, and 120 are without merit, the objections must be addressed by an appropriate motion to compel further responses to these RFP. (See Code Civ. Proc., § 2031.310, subd. (a)(3) [motion to compel further response applies to objections that are without merit]; Standon, supra, 225 Cal.App.3d at p. 903 [“nonmeritorious objections in the response must be attacked by motion within 45 days of its service”].) For this reason, the motion is also procedurally inappropriate.

Furthermore, the information provided by plaintiff demonstrates that Brown Insurance’s responses to RFP Nos. 34 through 39 do not contain a statement of compliance. (See Pl. Supp. Brief., p. 4, ll. 22-25 [Brown Insurance’s responses state that no responsive documents exist].) For reasons further discussed above, if Brown Insurance’s responses to RFP Nos. 34 through 39 are not satisfactory to plaintiff, plaintiff must file a motion to compel a further response under Code of Civil Procedure section 2031.310. For this additional reason, with regard to RFP Nos. 34 to 39, the present motion is procedurally inappropriate. (See Code Civ. Proc., § 2031.310, subds. (a)(1), (b), (c).)

Substantively, plaintiff summarizes the deposition testimony of Magno, Buelow, Olsen, and Lin to support her contention that the testimony of these witnesses establishes that Brown Insurance failed to adequately search for documents responsive to the RFP. Plaintiff has not provided appropriate citations to evidence to support these contentions as ordered by the Court, forcing the Court to search through the deposition testimony of these witnesses, which does not appear to be complete, to determine whether Brown Insurance failed to adequately search for any particular documents that are or may be responsive to the RFP at issue. (See Minute Order.)

In response to plaintiff’s contentions, Brown Insurance presents information, with citations to the deposition testimony discussed above, to demonstrate that Magno performed searches for responsive emails, that Magno searched for text messages on Magno’s personal cell phone because Magno was not issued a company phone, that Buelow left her employment with Brown Insurance in May 2022, that Buelow testified that she did not have emails or text messages that relate to plaintiff in any way, and that Lin testified that she personally searched for responsive documents even though not required to do so. Available information further demonstrates that Olsen searched for communications in “Teams” messages regarding the allegations in this matter but could find none. (See Aguilar Decl., Exh. D, p. 23, l. 22-p. 24, l. 15.) In addition, the information offered by Brown Insurance indicates that documents plaintiff contends are missing from the document production were subsequently produced by Brown Insurance on August 1, 2023, or do not exist.

Absent more specific information from plaintiff on a line-by-line basis with citations to evidence as required by the Minute Order, the Court is unable to definitively conclude that Brown Insurance failed to produce any specific documents in response to any particular statement of compliance based on plaintiff’s generalized and conclusory contentions. Moreover, and as further discussed above, to the extent there exists a dispute over plaintiff’s right to obtain the documents sought in these RFP, plaintiff has not filed an appropriate motion to compel further responses to the RFP. (Standon, supra, 225 Cal.App.3d at p. 903 [a motion to compel compliance is not a substitute for a motion to compel a further response to inspection demands].)

For all reasons discussed above, plaintiff has failed to comply with the Minute Order. In addition, the persisting procedural and substantive deficiencies discussed above prevent the Court from determining whether Brown Insurance has failed to produce documents also considering that available information demonstrates that Brown Insurance has asserted objections including those based on privilege in its responses to the RFP at issue which plaintiff has not addressed in an appropriate motion to compel further responses. Therefore, the Court will deny the motion to compel.