Shawn Parker v. Trader Joe’s Company, et al
Shawn Parker v. Trader Joe’s Company, et al
Case Number
22CV03213
Case Type
Hearing Date / Time
Wed, 11/08/2023 - 10:00
Nature of Proceedings
1) Motion to Compel Further Resp to Requests For Prod of Docs (Set1)/Sanctions; 2) Motion to Compel Further Resp to Special Roggs (Set1)/Sanctions; and, (3) Motion to Compel Further Resp to Form Roggs - General (Set1), Form Roggs - Employment (Set1)/Sanct
Tentative Ruling
For Plaintiff Shawn Parker: Jonathan McKee
For Defendant Trader Joe’s Company: Brandie N. Charles, Nicole Vongchanglor, Littler Mendelson, P.C.
For Defendant Zeb Albert: No appearance
For Defendant Caroline Neufeld: No appearance
RULING
This case is also on the CMC Calendar for 11/8/23; the CMC and the CL&M matters will both be called on the 10 am Calendar; no appearance necessary for the 8:30am CMC Calendar. The Trial Date of 4/24/24 is CONFIRMED
For the reasons set forth herein:
- The motion to compel further responses to requests for production of documents (set one) is granted in part and denied in part as follows:
- The motion is granted as to requests for production Nos. 12, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, and 30. For any documents withheld on the grounds of privilege, Plaintiff will be ordered to serve a privilege log identifying each responsive document withheld on the ground of privilege together with sufficient additional information, pursuant to Code of Civil Procedure section 2031.240, for the Court to evaluate the claim of privilege.
- The motion is denied as to request for production No. 10.
- The motion to compel further responses to special interrogatories (set one) is granted as to all of the special interrogatories.
- The motion to compel further responses to form interrogatories (set one) is granted as to all of the form interrogatories.
- Plaintiff shall serve properly verified, code compliant, further responses to the discovery requests, including responsive documents, without objections other than those based on privilege, no later than November 29, 2023.
- The request of Defendant for an award of monetary sanctions is granted in favor of Defendant Trader Joe’s Company and against Plaintiff Shawn Parker and his attorney of record McKee Law Firm, jointly and severally, in the amount of $4,100.00, to be paid to counsel for Plaintiff on or before December 8, 2023.
Background
This action was originally commenced on August 18, 2022, by the filing of the complaint by Plaintiff Shawn Parker against Defendants Trader Joe’s Company (Trader Joe’s) and Zeb Albert (Albert). On December 21, 2022, the Court scheduled a case management conference regarding service on Albert for February 1, 2023 and advised Plaintiff that a proof of service or a dismissal should be filed no later than January 30, 2023. On February 1, 2023, with no appearance by Plaintiff, and no proof of service on file for Albert, the Court set an order to show cause for Plaintiff counsel’s failure to comply with the December 21, 2022 order. On February 23, 2023, Plaintiff dismissed Albert without prejudice.
Following permission of the Court to do so, on October 12, 2023, Plaintiff filed the operative first amended complaint (FAC) for damages against Defendants Trader Joe’s, Albert, and Caroline Neufeld (Neufeld).
The FAC contains causes of action for: (1) Discrimination in violation of FEHA (Disability); (2) Discrimination in violation of FEHA (Race); (3) Harassment in violation of FEHA; (4) Retaliation in violation of FEHA; (5) Failure to accommodate disability; (6) Failure to engage in good faith interactive exchange re: accommodation of disability; (7) Failure to prevent harassment, retaliation or discrimination; (8) Violation of rights under the California Family Rights Act; (9) Wrongful termination in violation of public policy; and (10) Intentional infliction of emotional distress.
As alleged in the FAC:
Plaintiff was employed by Trader Joe’s as a crew member from July 1, 2006, until he was terminated on August 11, 2021. (FAC, ¶ 2.) Albert was, at all times material, Plaintiff’s manager and supervisor at Trader Joe’s. (FAC, ¶ 7.)
At all times material to this action, Plaintiff performed his job duties in a satisfactory manner. (FAC, ¶ 18.) During Plaintiff’s employment with Trader Joe’s, he “sustained multiple injuries as follows: July 31, 2011, specific to the head, neck and back; January 15, 2015, specific to the right knee; July 1, 2006 to September 27, 2015, to the bilateral wrists, arms, and upper extremities.” (FAC, ¶ 19.) As a result of Plaintiff’s medical conditions, had a history of need for reasonable accommodations, including lost time, surgery, and “probable” work limitations. (FAC, ¶ 21.)
In February 2020, prior to Albert becoming Plaintiff’s manager, Plaintiff received a very positive performance evaluation. (FAC, ¶ 23.) Prior to Albert becoming Plaintiff’s manager, in August 2020, Plaintiff was allowed limited time away from work to receive treatment for his medical conditions and injuries. (FAC, ¶¶ 24-25.)
After Albert became Plaintiff’s manager, Albert “commenced a systematic pattern of harassment, hostility, singling out, mistreatment and disparate treatment toward Plaintiff, subjecting Plaintiff to ridicule, criticism that was unjustified, and other adverse actions that negatively impacted Plaintiff’s ability to perform his job functions. The mistreatment included cutting Plaintiff’s work hours without justification, which resulted in a loss of medical insurance benefits to Plaintiff’s great detriment.” (FAC, ¶ 26.) Albert’s actions toward Plaintiff were motivated by Plaintiff’s race and prior history of being disabled due to workplace injuries occurring from 2006 through 2015. (FAC, ¶ 27.)
As a result of Albert changing store policy, Plaintiff was unable to work enough hours to keep his health care benefits. (FAC, ¶¶ 28-29.) In January 2021, Plaintiff contacted Human Resources Manager Vivian Wong and Region Manager Neufeld regarding the adverse actions and advised them that he had pre-existing medical conditions and provides medical insurance for his son. (FAC, ¶ 30.) Plaintiff was deprived on medical and health insurance through July 2021. (Ibid.)
On February 23, 2021, Albert gave Plaintiff a negative performance evaluation that was false and pretextual. (FAC, ¶ 32.) Following several incidents involving Plaintiff and Albert, on August 2, 2021, Defendant conducted a “crew review” which assessed Plaintiff as meeting expectations “in every category and describes him as exhibiting considerable improvement, as solid, versatile, valuable, integral, that he does an excellent job, and provides a WOW customer experience.” (FAC, ¶ 42.)
On August 2, 2021, Plaintiff notified Defendants that he needed to take time off for hand surgery and recovery, starting on September 3, 2021. (FAC, ¶ 43.) On August 11, 2021, Trader Joe’s and its agent Albert terminated Plaintiff employment because, according to an incident report, on August 5, 2021, Plaintiff entered the Trader Joe’s store without a face covering to pick up his paycheck. (FAC, 44.)
Trader Joe’s answered the original complaint on November 23, 2022, asserting a general denial and forty-seven affirmative defenses.
On November 17, 2022, Trader Joe’s served Plaintiff with Requests for Production of Documents (Set One), Special Interrogatories (Set One), Form Interrogatories – General (Set One), and Form Interrogatories – Employment (Set One). (Vongchanglor Dec. ¶ 4.) Following the granting of extensions, Plaintiff served unverified responses to the discovery requests on April 10, 2023. (Vongchanglor Dec. ¶¶ 5-6.) On May 1, 2023, Plaintiff served verifications to the discovery responses. (Vongchanglor Dec. ¶ 7.)
On June 19, 2023, Trader Joes served Plaintiff with a meet and confer letter regarding Plaintiff’s deficient discovery responses and requesting supplemental responses. (Vongchanglor Dec. ¶ 9 & Exh. 8.) Again, several extensions were given to provide further responses to discovery, resulting in a September 15, 2023 due date. (Vongchanglor Dec. ¶ 11 & Exh. 9.)
On July 26, 2023, Jonathan McKee substituted in as Plaintiff’s counsel and remains his attorney of record. (Vongchanglor Dec. ¶ 12.) On July 31, 2023, Defendant’s counsel emailed Plaintiff’s counsel regarding, among other things, the June 19, 2023 meet and confer letter. (Vongchanglor Dec. ¶ 13 & Exh. 10.) Plaintiff’s counsel responded, by email, the same day and agreed to provide Defendant with supplemental discovery responses in August. The motion to compel deadline was agreed to be extended to September 18, 2023. (Vongchanglor Dec. ¶ 14 & Exh. 11.)
On August 11, 2023, Defendant’s counsel sent Plaintiff’s counsel a letter requesting supplemental discovery responses and documents no later than August 18, 2023. (Vongchanglor Dec. ¶ 16 & Exh. 12.)
On August 15, 2023, Plaintiff’s counsel sent a letter to Defendant’s counsel titled “22CV03213 interrogatory answers.” The letter purports to provide responses to form interrogatories – general Nos. 2.8, 9.1, and 9.2; form interrogatories – employment Nos. 210.4, 212.4, 212.6, 212.5, 212.7, and 213.1; special interrogatories Nos. 2, 3, 4, and 8. The letter is “declared under California perjury law” by Plaintiff’s counsel. The “responses” are not verified by Plaintiff. (Vongchanglor Dec. ¶¶ 17-18 & Exhs. 13-14.)
On August 22, 2023, Defendant’s counsel sent an email to Plaintiff’s counsel requesting an extension to compel further responses to October 2, 2023. (Vongchanglor Dec. Exh. 15.) Plaintiff’s counsel agreed to the extension. (Ibid.)
On August 23, 2023, Plaintiff indicated that he is compiling the documents requested by Defendant. (Vongchanglor Dec. ¶ 20 & Exh. 15.) On September 8, 2023, Defendant’s counsel sent Plaintiff’s counsel a letter explaining how the August 15, 2023 letter, purporting to supplement Plaintiff’s interrogatory responses was still deficient and requesting supplemental responses by September 15, 2023. (Vongchanglor Dec. ¶ 21 & Exh. 16.) As of October 22, 2023, Plaintiff has not responded to Defendant’s September 8, 2023 letter, nor has he provided supplemental verified discovery responses, nor has he produced any documents despite Plaintiff’s counsel’s representations that he would do so. (Vongchanglor Dec. ¶ 22.)
Trader Joe’s now moves to compel further responses to requests for production of documents Nos. 10, 12, 15-30, and production of the documents; special interrogatories Nos. 2-4, and 8; form interrogatories – general Nos. 9.1 and 9.2; and form interrogatories – employment Nos. 210.4, 212.4, 212.5, 212.6, 212.7, 213.1, and 213.2.
On October 31, 2023, Plaintiff late filed a document entitled “Response to Motions to Compel” (response). The response is not an opposition. Rather it purports to be further responses to the discovery requests. The response is not a proper document to file in response to the motions to compel nor is it in proper format to be considered further responses to the discovery. Additionally, the first sentence of the response improperly sets forth details of settlement negotiations. It is also noted that the “verification” attached to the responses is insufficient. The response has no impact on the present motion to compel.
Analysis
“Unless otherwise limited by order of the Court in accordance with this title, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action. Discovery may be obtained of the identity and location of persons having knowledge of any discoverable matter, as well as of the existence, description, nature, custody, condition, and location of any document, electronically stored information, tangible thing, or land or other property.” (Code Civ. Proc., § 2017.010.)
“A trial Court must be mindful of the Legislature’s preference for discovery over trial by surprise, must construe the facts before it liberally in favor of discovery. . .” (Williams v. Superior Court (2017) 3 Cal.5th 531, 540.)
Requests for production of documents
Code of Civil Procedure, section 2031.010 provides, in pertinent part:
“(a) Any party may obtain discovery . . . by inspecting, copying, testing, or sampling documents, tangible things, land or other property, and electronically stored information in the possession, custody, or control of the party on whom the demand is made.
“(b) A party may demand that any other party produce and permit the party making the demand, or someone acting on the demanding party’s behalf, to inspect and to copy a document that is in the possession, custody, or control of the party on whom the demand is made.”
“The party to whom a demand for inspection, copying, testing, or sampling has been directed shall respond separately to each item or category of item by any of the following:
“(1) A statement that the party will comply with the particular demand for inspection, copying, testing, or sampling by the date set for the inspection, copying, testing, or sampling . . .
“(2) A representation that the party lacks the ability to comply with the demand for inspection, copying, testing, or sampling of a particular item or category of item, or
“(3) An objection to the particular demand for inspection, copying, testing, or sampling.” (Code Civ. Proc. § 2031.210, subd. (a).)
“If 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).)
A motion to compel further responses to a demand for production of documents “shall set forth specific facts showing good cause justifying the discovery sought by the demand.” (Code Civ. Proc., § 2031.310, subd. (b)(1).) To establish good cause, the burden is on the moving party to make a “fact-specific showing of relevance.” (Glenfed Development Corp. v. Superior Court (1997) 53 Cal.App.4th 1113, 1117 (Glenfed).) Once good cause is established by the moving party, the burden then shifts to the responding party to justify any objections made to document disclosure. (See Hartbrodt v. Burke (1996) 42 Cal.App.4th 168, 172-174.)
Declarations are generally used to show the requisite “good cause” for an order to compel inspection. The declarations must contain “specific facts” rather than mere conclusions. (Fireman’s Fund Ins. Co. v. Superior Court (1991) 233 Cal.App.3d 1138, 1141.) No such declaration, or other evidence, was presented to the Court showing good cause.
RFP No. 10
Request for Production No. 10 seeks: “Any and all DOCUMENTS that evidence, or RELATE TO, any medical, psychological or psychiatric treatment PLAINTIFF sought or was rendered to PLAINTIFF since January 2011, regardless of cause, including, but not limited to, medical records, reports, notes and/or prescriptions obtained from doctors, psychologists, psychiatrists, therapists, psychological counselors and/or health care providers.”
Plaintiff responded to Request for Production No. 10 as follows: “Objection: The request or demand is overbroad as to time and subject matter, unduly burdensome, and not reasonably particularized, particularly with respect to the definitions preceding the request; right to privacy.”
Defendant argues that the requested documents are discoverable because Plaintiff has placed his medical condition at issue by asserting a claim for intentional infliction of emotional distress, physical injuries, pain and suffering, extreme and severe mental anguish and emotional distress, and medical expenses.
“In determining whether one has waived the right of privacy by bringing suit, our Supreme Court has noted that although there may be an implicit partial waiver, the scope of such waiver must be narrowly, rather than expansively construed, so that Plaintiffs will not be unduly deterred from instituting lawsuits by fear of exposure of private activities. (Vinson v. Superior Court (1987) 43 Cal.3d 833, 842, quoting Britt v. Superior Court (1978) 20 Cal.3d 844, 859.) An implicit waiver of a party’s constitutional rights encompasses only discovery directly relevant to the Plaintiff’s claim and essential to the fair resolution of the lawsuit. [Citation.] There must be a compelling and opposing state interest justifying the discovery. [Citation.] Even when discovery of private information is found directly relevant to the issues of ongoing litigation, it will not be automatically allowed; there must then be a careful balancing of the compelling public need for discovery against the fundamental right of privacy. [Citation.] The scope of any disclosure must be narrowly circumscribed, drawn with narrow specificity, and must proceed by the least intrusive manner.” (Davis v. Superior Court (1992) 7 Cal.App.4th 1008, 1014.) “The burden is on the party seeking the constitutionally protected information to establish direct relevance.” (Id. at p. 1017.)
Request No. 10 is grossly overbroad, and Defendant has not met its burden of showing good cause for production of the totality of Plaintiff’s medical records. Defendant has made no attempt to limit the request to specific injuries directly relevant to Plaintiff’s claims. Defendant is not entitled to the entirety of Plaintiff’s medical records.
Because request No. 10 is grossly overbroad, as drafted, the motion to compel a further response will be denied.
RFP No. 12
Request for Production No. 12 seeks: “All DOCUMENTS that evidence, or RELATE TO, claims or procedures other than this action, whether administrative or legal, filed or commenced, or caused to be filed or commenced by PLAINTIFF within the last five years.”
Plaintiff responded to Request for Production No. 12 as follows: “Objection: The request or demand is overbroad as to time and subject matter, unduly burdensome, and not reasonably particularized, particularly with respect to the definitions preceding the request; right to privacy.”
Defendant argues that the documents are discoverable because Plaintiff’s claims arise out of his employment with Defendant and has set forth causes of action for discrimination, harassment, retaliation, and wrongful termination. The documents relate to alleged facts underpinning Plaintiff’s claims of racial and disability discrimination, harassment, retaliation, and wrongful termination.
The Court agrees that the requests are reasonably calculated to lead to the discovery of admissible evidence and the request is narrowly tailored in both time and scope. As such, the motion to compel a further response to request No. 12 will be granted.
RFP No. 15
Request for Production No. 15 seeks: “All DOCUMENTS and WRITINGS that evidence, or RELATE TO, PLAINTIFF’s claim for punitive damages.”
Plaintiff responded to Request for Production No. 15 as follows: “Objection: The request or demand is overbroad as to time and subject matter, unduly burdensome, and not reasonably particularized, particularly with respect to the definitions preceding the request.”
Defendant argues that the requested documents are discoverable as it relates to Plaintiff’s ability to pursue his claims for damages and establish the requisite elements.
As Plaintiff is seeking punitive damages, particularly with respect to his cause of action for intentional infliction of emotional distress, Defendant is entitled to conduct discovery as to the basis of Plaintiff’s claims. As such, the motion to compel a further response to request No. 15 will be granted.
RFP No. 16
Request for Production No. 16 seeks: “All DOCUMENTS that evidence, or RELATE TO, any claim by PLAINTIFF for attorney’s fees.”
Plaintiff responded to Request for Production No. 16 as follows: “Objection: The request or demand is overbroad as to time and subject matter, unduly burdensome, and not reasonably particularized, particularly with respect to the definitions preceding the request. Attorney-client privilege, work product doctrine.”
Plaintiff is seeking attorney’s fees. The motion to compel a further response to request No. 16 will be granted for the same reasons as request No. 15. For any documents withheld on the grounds of privilege, Plaintiff will be ordered to serve a privilege log identifying each responsive document withheld on the ground of privilege together with sufficient additional information, pursuant to Code of Civil Procedure section 2031.240, for the Court to evaluate the claim of privilege.
RFP Nos. 17 through 26
Request for Production No. 17 seeks: “All DOCUMENTS that evidence, or RELATE TO, PLAINTIFF’S First Claim for ‘Discrimination in Violation of FEHA (Disability).’ ”
Request for Production No. 18 seeks: “All DOCUMENTS that evidence, or RELATE TO, PLAINTIFF’S Second Claim for ‘Discrimination in Violation of FEHA (Race).’ ”
Request for Production No. 19 seeks: “All DOCUMENTS that evidence, or RELATE TO, PLAINTIFF’S Third Claim for ‘Harassment in Violation of FEHA (Hostile Work Environment).’ ”
Request for Production No. 20 seeks: “All DOCUMENTS that evidence, or RELATE TO, PLAINTIFF’S Fourth Claim for ‘Retaliation in Violation of FEHA.’ ”
Request for Production No. 21 seeks: “All DOCUMENTS that evidence, or RELATE TO, PLAINTIFF’S Fifth Claim for ‘Failure to Accommodate Disability.’ ”
Request for Production No. 22 seeks: “All DOCUMENTS that evidence, or relate or refer to, PLAINTIFF’S Sixth Claim for ‘Failure to Engage in Good Faith, Interactive Exchange re: Accommodation of Disability.’ ”
Request for Production No. 23 seeks: “All DOCUMENTS that evidence, or RELATE TO, PLAINTIFF’S Seventh Claim for ‘Failure to Prevent Harassment, Retaliation or Discrimination in Violation of FEHA.’ ”
Request for Production No. 24 seeks: “All DOCUMENTS that evidence, or RELATE TO, PLAINTIFF’S Eighth Claim for ‘Violation of Rights under the California Family Rights Act (“CFRA”).’ ”
Request for Production No. 25 seeks: “All DOCUMENTS that evidence, or RELATE TO, PLAINTIFF’S Ninth Claim for ‘Wrongful Termination in Violation of Public Policy.’ ”
Request for Production No. 26 seeks: “All DOCUMENTS that evidence, or RELATE TO, PLAINTIFF’S Tenth Claim for ‘Intentional Infliction of Emotional Distress.’ ”
Plaintiff responded to each of the requests as follows: “Objection: The request or demand is overbroad as to time and subject matter, unduly burdensome, and not reasonably particularized, particularly with respect to the definitions preceding the request.”
All of these requests directly relate to causes of action contained in the FAC, and Defendant is entitled to conduct discovery regarding the basis of the allegations. The motion to compel further responses to requests No. 17 through 26 will be granted for the same reasons as request No. 15.
RFP Nos. 27 and 28
Request for Production No. 27 seeks: “All DOCUMENTS that evidence, or RELATE TO, any and all witness statements prepared by or signed by PLAINTIFF in connection with the COMPLAINT.”
Request for Production No. 28 seeks: “All DOCUMENTS that evidence, or RELATE TO, any and all witness statements prepared by or signed by any person other than PLAINTIFF in connection with the COMPLAINT.”
Plaintiff responded to Requests for Production Nos. 27 and 28 as follows: “Objection: The request or demand is overbroad as to time and subject matter, unduly burdensome, and not reasonably particularized, particularly with respect to the definitions preceding the request. Work product, attorney client privilege.”
Defendant is entitled to conduct discovery to identify potential witnesses that have information related to Plaintiff’s allegations. The request is reasonably calculated to lead to the discovery of admissible evidence. The motion to compel further response to requests Nos. 27 and 28 will be granted. For any documents withheld on the grounds of privilege, Plaintiff will be ordered to serve a privilege log identifying each responsive document withheld on the ground of privilege together with sufficient additional information, pursuant to Code of Civil Procedure section 2031.240, for the Court to evaluate the claim of privilege.
RFP Nos. 29 and 30
Request for Production No. 29 seeks: “All DOCUMENTS that evidence, or RELATE TO, any and all declarations and/or sworn statements prepared by or signed by PLAINTIFF in connection with the COMPLAINT.”
Request for Production No. 30 seeks: “All DOCUMENTS that evidence, or RELATE TO, any and all declarations and/or sworn statements prepared by or signed by any person other than PLAINTIFF in connection with the COMPLAINT.”
Plaintiff responded to Requests for Production Nos. 29 and 30 as follows: “Objection: The request or demand is overbroad as to time and subject matter, unduly burdensome, and not reasonably particularized, particularly with respect to the definitions preceding the request. Work product, attorney client privilege.”
As with requests Nos. 27 and 28, requests 29 and 30 seek documents that are reasonably calculated to lead to the discovery of admissible evidence. As such, the motion to compel further response to requests Nos. 29 and 30 will be granted. For any documents withheld on the grounds of privilege, Plaintiff will be ordered to serve a privilege log identifying each responsive document withheld on the ground of privilege together with sufficient additional information, pursuant to Code of Civil Procedure section 2031.240, for the Court to evaluate the claim of privilege.
Special Interrogatories
Code of Civil Procedure, section 2030.010 provides, “(a) Any party may obtain discovery within the scope delimited by Chapter 2 (commencing with Section 2017.010), and subject to the restrictions set forth in Chapter 5 (commencing with Section 2019.010), by propounding to any other party to the action written interrogatories to be answered under oath. (b) An interrogatory may relate to whether another party is making a certain contention, or to the facts, witnesses, and writings on which a contention is based. An interrogatory is not objectionable because an answer to it involves an opinion or contention that relates to fact or the application of law to fact, or would be based on information obtained or legal theories developed in anticipation of litigation or in preparation for trial.”
A party may respond to interrogatories, in writing and under oath, by (1) providing an answer containing the information sought, (2) exercising the option to produce writings, or (3) by objecting to the particular interrogatory. (Code Civ. Proc., section 2030.210 subd. (a).)
Code of Civil Procedure section 2030.220 provides that, “(a) Each answer in a response to interrogatories shall be as complete and straightforward as the information reasonably available to the responding party permits. (b) If an interrogatory cannot be answered completely, it shall be answered to the extent possible. (c) If the responding party does not have personal knowledge sufficient to respond fully to an interrogatory, that party shall so state, but shall make a reasonable and good faith effort to obtain the information by inquiry to other natural persons or organizations, except where the information is equally available to the propounding party.”
SI Nos. 2, 3, and 4
Special Interrogatory No. 2 requires Plaintiff to: “Describe in detail, including the name and ADDRESS, and dates of application, if any, of every prospective employer and all efforts YOU have engaged in to secure or obtain, and/or to attempt to secure or obtain, employment, independent contractor work or other compensation from the time YOUR employment with TRADER JOE’S terminated to the present date.”
Special Interrogatory No. 3 requires Plaintiff to: “State the name, ADDRESS and dates of employment or dates of services provided, if any, of each person or entity for whom YOU have undertaken employment, provided services as an independent contractor or otherwise received compensation in the period of time since the termination of YOUR employment with TRADER JOE’S.”
Special Interrogatory No. 4 requires Plaintiff to: “State the amount and source of all income that YOU have received since the termination of YOUR employment with TRADER JOE’S, including salary, commissions, bonuses and other compensation for services performed; unemployment insurance; workers’ compensation; and/or disability benefits.”
Plaintiff responded to Special Interrogatories Nos. 2, 3, and 4 as follows: “Objection: The Interrogatory is overbroad as to time and subject matter, unduly burdensome, and impermissibly compound. Without waiving these objections, Plaintiff has devoted additional time making efforts to grow his existing business.”
Plaintiff is claiming damages for loss of earnings and employment benefits. He has a duty to disclose information relative to the amount of his claim and his efforts to mitigate his damages. Defendant is entitled to conduct discovery related to the claim. Plaintiff’s responses are incomplete and evasive. If he has not sought any employment, or received any income during the stated timeframe, he must so state. If he has sought employment, or received income, he is required to provide the requested information in its entirety.
The motion to compel a further response to Special Interrogatories Nos. 2, 3, and 4 will be granted.
SI No. 8
Special Interrogatory No. 8 requires Plaintiff to: “IDENTIFY each and every physician, psychiatrist, psychologist, counselor, therapist, herbalist, or any other health care provider that has treated YOU at any time within the last ten (10) years for psychological, mental, and/or emotional distress.”
Plaintiff responded to Special Interrogatory No. 8 as follows: “Objection: The Interrogatory is overbroad as to time and subject matter, unduly burdensome, and impermissibly compound; right to privacy.”
The FAC contains a cause of action for intentional infliction of emotional distress. He alleges that he has suffered “extreme and severe mental anguish and emotional distress.” (FAC, ¶¶ 74, 83, 101, 113, 123, 135, 143, 153, 161, 164, 170.) Plaintiff has put his mental health condition at issue. As such, the information is discoverable.
The motion to compel a further response to special interrogatory No. 8 will be granted.
Form Interrogatories
Defendant seeks further responses to general form interrogatories Nos. 9.1 and 9.2, as well as further responses to employment form interrogatories Nos. 210.4, 212.4, 212.5, 212.6, 212.7, 213.1, and 213.2.
FI Nos. 9.1 and 9.2
Form Interrogatory No. 9.1 asks Plaintiff if there are any other damages that he attributes to the incident and, if so, to state the nature of the damage, the date it occurred, the amount, and the name address and telephone number of each person to whom an obligation was incurred.
Form Interrogatory No. 9.2 asks Plaintiff to identify documents that support the existence or amount of any item of damages claimed in interrogatory 9.1.
To each of the interrogatories, Plaintiff responded as follows: “Objection: The Interrogatory is overbroad as to time and subject matter, unduly burdensome, and impermissibly compound, particularly with respect to the definition of the term ‘Incident.’ Without waiving these objections: Unknown.”
Plaintiff’s responses are incomplete and evasive. Clearly, it would be Plaintiff himself that would know if he suffered any other damages that he attributes to the series of events that is alleged in his FAC. He must provide a complete and straightforward response.
The motion to compel further responses to form interrogatories Nos. 9.1 and 9.2 will be granted.
FI No. 210.4
Form Interrogatory No. 210.4 asks: “Have you attempted to minimize the amount of your lost income? If so, describe how; if not, explain why not.”
Plaintiff responded to Form Interrogatory No. 210.4: “Plaintiff has devoted additional time making efforts to grow his existing business, Make It Wireless 401 North Milpas Suite A, Santa Barbara, CA 93103 805.883.1700.”
Plaintiff’s response is cursory and incomplete. It can be inferred that he is claiming that he is attempting to minimize the amount of his lost income by devoting additional time to grow his business. However, Plaintiff does not provide any information as to how he is attempting to grow his business or if he has taken any other steps to minimize the amount of his lost income. Defendant is entitled to explore Plaintiff’s claimed damages and efforts to mitigate those damages.
The motion to compel a further response to form interrogatory No. 210.4 will be granted.
FI No. 212.4
Form Interrogatory No. 212.4 asks: “Did you receive any consultation or examination (except from expert witnesses covered by Code of Civil Procedure section 2034) or treatment from a HEALTH CARE PROVIDER for any injury you attribute to the ADVERSE EMPLOYMENT ACTION? If so, for each HEALTH CARE PROVIDER state:
“(a) the name, ADDRESS, and telephone number;
“(b) the type of consultation, examination, or treatment provided;
“(c) the dates you received consultation, examination, or treatment; and
“(d) the charges to date.”
Plaintiff responded to Form Interrogatory No. 212.4: “David Mendel 317 W. Pueblo St Santa Barbara, CA 93105 p.805-681-700; ongoing treatment for diabetes and general health; Jordan Robinson & Gary Linker 120 Santa Barbara St Santa Barbara, CA 93105; P. 805-451-3222; mental health issues; Every Tuesday for 1 hour beginning in October of 2021.”
Defendant is entitled to conduct discovery regarding Plaintiff’s claimed injuries, including consultation, examination, and treatment from healthcare providers. Plaintiff’s response is incomplete. He fails to provide complete phone number for David Mendel, and completely omits the information called for by subdivisions (b), (c), and (d). Plaintiff is required to provide a complete response.
The motion to compel a further response to form interrogatory No. 212.4 will be granted.
FI No. 212.5
Form Interrogatory No. 212.5 asks: “Have you taken any medication, prescribed or not, as a result of injuries that you attribute to the ADVERSE EMPLOYMENT ACTION? If so, for each medication state:
“(a) the name of the medication;
“(b) the name, ADDRESS and telephone number of the PERSON who prescribed or
furnished it;
“(c) the date prescribed or furnished;
“(d) the dates you began and stopped taking it; and
“(e) the cost to date.”
Plaintiff responded to Form Interrogatory No. 212.5: “Tragenta.”
Plaintiff has completely omitted the information called for in subdivisions (b) through (e). He is required to provide that information in full.
The motion to compel a further response to form interrogatory No. 212.5 will be granted.
FI No. 212.6
Form Interrogatory No. 212.6 asks: “Are there any other medical services not previously listed in response to interrogatory 212.4 (for example, ambulance, nursing, prosthetics) that you received for injuries attributed to the ADVERSE EMPLOYMENT ACTION? If so, for each service state:
“(a) the nature;
“(b) the date;
“(c) the cost; and
“(d) the name, ADDRESS, and telephone number of each HEALTH CARE PROVIDER.”
Plaintiff gave the same response as he did to form interrogatory No. 212.4: “David Mendel 317 W. Pueblo St Santa Barbara, CA 93105 p.805-681-700; ongoing treatment for diabetes and general health; Jordan Robinson & Gary Linker 120 Santa Barbara St Santa Barbara, CA 93105; P. 805-451-3222; mental health issues; Every Tuesday for 1 hour beginning in October of 2021.”
Plaintiff’s response makes no sense in that the interrogatory asks for information that was not provided in response to interrogatory 212.4. Plaintiff does not provide any new information. Rather, he provides the same deficient response that he provided for 212.4.
The motion to compel a further response to form interrogatory No. 212.6 will be granted.
FI No. 212.7
Form Interrogatory No. 212.7 asks: “Has any HEALTH CARE PROVIDER advised that you may require future or additional treatment for any injuries that you attribute to the ADVERSE EMPLOYMENT ACTION? If so, for each injury state:
“(a) the name and ADDRESS of each HEALTH CARE PROVIDER;
“(b) the complaints for which the treatment was advised; and
“(c) the nature, duration, and estimated cost of the treatment.”
In response, Plaintiff provided essentially the same information that he did in response to form interrogatories Nos. 212.4 and 212.6: “Yes. David Mendel 317 W. Pueblo St Santa Barbara, CA 93105 p.805-681-700; ongoing treatment for diabetes and general health; Jordan Robinson & Gary Linker 120 Santa Barbara St Santa Barbara, CA 93105; P. 805-451-3222; mental health issues; Every Tuesday for 1 hour beginning in October of 2021. Ongoing.”
In its context, the response makes little sense. It is deficient for the same reasons that the responses to interrogatories Nos. 212.4 and 212.6 are deficient. As such, the motion to compel a further response to form interrogatory No. 212.7 will be granted.
FI Nos. 213.1 and 213.2
Form Interrogatory No. 213.1 asks: “Are there any other damages that you attribute to the ADVERSE EMPLOYMENT ACTION? If so, for each item of damage state:
“(a) the nature;
“(b) the date it occurred;
“(c) the amount; and
“(d) the name, ADDRESS, and telephone number of each PERSON who has knowledge
of the nature or amount of the damage.”
Plaintiff responded to Form Interrogatory No. 213.1: “Unknown.”
Form Interrogatory No. 213.2 asks: “Do any DOCUMENTS support the existence or amount of any item of damages claimed in Interrogatory 213.1? If so, identify the DOCUMENTS and state the name, ADDRESS, and telephone number of the PERSON who has each DOCUMENT.”
Plaintiff responded to Form Interrogatory No. 213.2: “Not applicable.”
Form interrogatory 213.1 is, initially, a “yes” or “no” question. Plaintiff would be the primary person to know whether he attributes any other damages to adverse employment action. If he is not claiming any other damages, he must so state. If he is claiming other damages, he must also so state and then provide the requested additional information in full.
While technically Plaintiff’s response to interrogatory No. 213.2 is correct, as he did not claim any additional damages in response to interrogatory No. 213.1, he will be required to amend his response once he has provided a proper code-compliant response to form interrogatory No. 213.1.
The motion to compel further responses to form interrogatories Nos. 213.1 and 213.2 will be granted.
Sanctions
Defendant seeks sanctions against Plaintiff in the amount of $7,840.00 for each of the three motions to compel. In the Vongchanglor declarations submitted in support of each motion, Defendant’s counsel declares that he has spent “in excess of 10 hours preparing the memorandum of points and authorities, separate statement and other documents in support of [the] motion.” Defense counsel anticipates an additional 6 hours, presumably for each motion, in reviewing an opposition, preparing a reply, and preparing for and attending the hearing. Defense counsel’s hourly rate is $490.00. Defendant also seeks $60.00 in filing fees for each motion.
The Court “shall impose a monetary sanction against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a further response to [or requests for production of documents, or interrogatories], 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. §§ 2031.300; 2030.300, subd. (d).)
“Misuses of the discovery process include . . .(d) failing to respond or to submit to an authorized method of discovery, (e) making, without substantial justification, an unmeritorious objection to discovery, (f) making an evasive response to discovery . . . (h) making or opposing, unsuccessfully and without substantial justification, a motion to compel or to limit discovery, (i) failing to confer in person, by telephone, or by letter with an opposing party or attorney in a reasonable and good faith attempt to resolve informally any dispute concerning discovery, if the section governing a particular discovery motion requires the filing of a declaration stating facts showing that an attempt at informal resolution has been made.” (Code Civ. Proc., 2023.010, subds. (d), (e), (f), (h), & (i).)
“The Court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed.” (Cal. Rules of Court, rule 3.1348(a).)
From the initial discovery responses, which consisted of unmeritorious boilerplate objections, through the late filing of the “response to motions to compel,” Plaintiff failed to act with substantial justification. No other circumstances make the imposition of sanctions unjust. Sanctions will be awarded against Plaintiff and in favor of Defendant for the necessity of bringing the motions.
The Court finds that eight hours of time for defense counsel, to prepare all three motions and attend the hearing on this matter, at the rate of $490.00 per hour is reasonable. Filing fees for the motions, at $60.00 each, will also be awarded. The total amount of sanctions awarded in favor of Defendant will be $4,100.00.