John Doe vs Norman’s Nursery Inc et al

Case Number

23CV01348

Case Type

Hearing Date / Time

Fri, 08/16/2024 - 10:00

Nature of Proceedings

CMC; (4) Motions to Compel

Tentative Ruling

For all reasons discussed herein:

1. Plaintiff’s motions to compel defendant Norman’s Nursery, Inc.’s further responses to form interrogatories - general, set one and further responses to form interrogatories - employment, set one are granted in part and denied in part as follows.

            a. Norman’s Nursery, Inc. shall provide further complete, code-compliant responses, without objection except as to privilege, to form interrogatories Nos. 15.1, 201.6, 207.1 subdivision (a), 211.1, and 216.1.

            b. The motion to compel further responses to form interrogatories Nos. 201.1, 201.2, and 201.4 is denied. However, Norman’s Nursery, Inc. should consider amending the responses for reasons set forth below.

2. Plaintiffs motion to compel defendant Norman’s Nursery, Inc.’s further responses to special interrogatories, set one is granted in part and denied in part as follows.

            a. Norman’s Nursery, Inc. shall provide further complete, code-compliant responses, without objection except as to privilege, to special interrogatories Nos. 5, 7, 8, 22, 39, 54, 63, and 76.

            b. The motion to compel further responses to special interrogatories Nos. 3, 12, 24, 26, 27, 28, 40, 46, 47, 48, 49, 50, 51, 52, and 53 is denied.

3. Plaintiff’s motion to compel Norman’s Nursery, Inc.’s further responses to requests for production of documents, set one is granted in part and denied in part as follows.

            a. Norman’s Nursery, Inc. shall provide further complete, code-compliant responses, without objection except as to privilege, to requests for production Nos. 26, 28, 47, 59, 63, and 64.

            b. The motion to compel further responses to requests for production Nos. 40 and 50 is denied.

4. Norman’s Nursery, Inc. shall serve its complete and code-compliant further responses to the discovery, absent objections except as to privilege, no later than September 6, 2024. As to any documents that are withheld based on a claim of privilege, Norman’s Nursery, Inc. shall provide a code-compliant privilege log.

Background: 

This action commenced on April 3, 2023, by the filing of the complaint by plaintiff John Doe. As alleged in the complaint:

In August 2014, plaintiff was hired to work at defendant Norman’s Nursery, Inc. (NNI). (Compl., ¶ 12.) Defendant Cuauhtemoc Rodriguez (Rodriguez) was plaintiff’s supervisor. (Id. at ¶ 13.) Rodriguez constantly made sexual comments about plaintiff and was reported to NNI’s Human Resources for sexual harassment in 2018. (Id. at ¶¶ 13, 14.) NNI failed to investigate and prevent the sexual harassment perpetrated by Rodriguez. (Id. at ¶ 14.)

In May 2019, NNI moved Rodriguez to its “Casitas” location but eventually moved Rodriguez back to the “Vila Real” location where plaintiff worked. (Compl., ¶ 15.) On November 16 and 17, 2019, while plaintiff was spraying pesticides, Rodriguez grabbed plaintiff and forcefully tried to hug and kiss him. (Id. at ¶¶ 16 & 17.) Plaintiff attempted to push Rodriguez away but Rodriguez continued to force himself on plaintiff. (Ibid.)

Plaintiff tried to avoid going to work on the days he knew Rodriguez was assigned to plaintiff’s location. (Compl., ¶ 18.) Plaintiff would take days off or call in sick, until he was told by Human Resources, Maria Alonzo (Alonzo), that he was missing a lot of work. (Ibid.) Plaintiff informed Alonzo about the sexual harassment and abuse he was suffering at the hands of Rodriguez but .Alonzo told plaintiff that “these are some serious accusations that could get you into trouble.” (Id. at ¶¶ 18 & 19.)

The sexual harassment continued when Rodriguez pulled out his penis in front of plaintiff and proceeded to make sexual remarks to plaintiff. (Compl., ¶ 20.) Plaintiff felt threatened by Rodriguez because Rodriguez is physically larger and stronger than plaintiff, but plaintiff ultimately was able to get away. (Id. at ¶ 20.) Subsequently, Rodriguez threatened plaintiff by saying that Rodriguez could get plaintiff fired, and forcefully performed oral sex on plaintiff. (Id. at ¶ 21.) On March 18, 2022, plaintiff could no longer endure the sexual abuse and harassment and resigned. (Id. at ¶ 22.)

The complaint alleges seventeen causes of action: (1) negligence (against NNI only); (2) workplace sexual harassment (against NNI and Rodriguez); (3) employment discrimination based on sexual orientation (against NNI and Rodriguez); (4) violation of the Ralph Civil Rights Act (against NNI and Rodriguez); (5) violation of the Tom Bane Civil Rights Act (against NNI and Rodriguez); (6) hostile work environment harassment (against NNI and Rodriguez); (7) failure to take all reasonable steps to prevent harassment, retaliation, and discrimination in violation of the Fair Employment and Housing Act (FEHA) (against NNI); (8) failure to investigate in violation of FEHA (against NNI) (9) retaliation in violation of FEHA (against NNI); (10) wrongful constructive discharge of employment in violation of public policy (against NNI and Rodriguez); (11) wrongful termination in violation of public policy (against NNI); (12) failure to pay overtime wages (against NNI); (13) failure to provide meal periods (against NNI); (14) failure to authorize and permit rest periods (against NNI); (15) failure to pay wages of discharged employees – waiting time penalties (against NNI); (16) failure to provide and maintain accurate and code compliant wage records (against NNI); and (17) violation of California Business and Professions Code section 17200 et seq. (against NNI).

On May 5, 2023, NNI and Rodriguez each filed separate answers to the complaint of plaintiff in which NNI and Rodriguez generally deny its allegations and assert affirmative defenses.

On January 31, 2024, plaintiff filed four motions: (1) for an order compelling NNI to respond further to plaintiff’s form interrogatories – general, set one (the General FI Motion); (2) for an order compelling NNI to respond further to plaintiff’s form interrogatories – employment, set one (the Employment FI Motion); (3) for an order compelling NNI to respond further to plaintiff’s special interrogatories, set one (the SI Motion); and (4) for an order compelling NNI to respond further to plaintiff’s requests for production, set one (the RFP Motion) (collectively, the motions).

On April 19, 2024, because of several procedural deficiencies with the motions, they were denied without prejudice.

On June 27, 2024, plaintiff corrected the procedural deficiencies and refiled the motions.

NNI opposes the motions, but does not dispute that the meet and confer requirement has been satisfied or that the motions are timely.

Analysis:

            Discovery

“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.)

            Form Interrogatories - General, Set One

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.”

Plaintiff seeks to compel further responses to form interrogatories - general, set one No. 15.1, on the grounds that the verified response “is non-responsive, non-substantive, unsatisfactory, inadequate, incomplete, and evasive,” and that NNI’s objections are “boilerplate,” “untenable, generic and unsupported by any meritorious argument.” (Notice of Motion, p. 2, ll. 1-5.)

Form Interrogatory No. 15.1 requires NNI to:

“Identify each denial of a material allegation and each special or affirmative defense in your pleadings and for each:

            “(a) state all facts upon which you base the denial or special or affirmative defense;

            “(b) state the names, ADDRESSES and telephone numbers of all PERSONS who have knowledge of those facts; and

            “(c) identify all DOCUMENTS and other tangible things that support your denial or special or affirmative defenses, and state the name, ADDRESS and telephone number of the PERSON who has each DOCUMENT.”

NNI provided an initial response of:

“Defendant objects to this interrogatory on the grounds it is overly broad, unduly burdensome, and oppressive. Defendant further objects to this interrogatory to the extent it seeks information protected from disclosure by the right to privacy of third-party non-litigants pursuant to Article I, Section 1 of the California Constitution. Defendant also objects that this interrogatory seeks privileged information to the extent it seeks information protected from disclosure by the attorney-client privilege or attorney work product doctrine. Defendant also objects to this interrogatory on the ground it violates to the self-containment rule set forth in Section 2030.060(d) of the California Code of Civil Procedure, which requires that each interrogatory be “ ‘full and complete in and of itself.’ ” (See Catanese v. Superior Court (1996) 46 Cal.App.4th 1159.)

“In addition, Defendant objects to this interrogatory to the extent it is premature. Defendant has filed a general denial, as it is entitled to do pursuant to the Code of Civil Procedure. Parties are entitled to use a general denial as a means of preserving all possible defenses on all issues that may surface during the discovery phase of litigation. As Plaintiff’s counsel no doubt is aware, this often is done as a matter of course in order to preserve any possible defenses of which Defendant may be unaware at the time the answer is filed. The affirmative defenses may or may not become relevant, depending on the discovery phase of litigation. The facts, witnesses, and documentary evidence to support the denials and affirmative defenses are the subject of investigation and discovery.”

NNI then provided a supplemental response that reasserted the above objections and then addressed 41 of its 42 affirmative defenses.

As to affirmative defenses Nos. 1-8, 10, 11, 15-17, 21, 23-40, plaintiff argues that NNI has evaded answering subsection (a), by not providing any material facts pertaining to this case and only stating that the affirmative defense was asserted to avoid waiver.

As to affirmative defenses Nos. 2-8, 10, 11, 15-17, 21, 23-40, plaintiff argues that NNI has evaded answering subsection (b), by not stating the names, addresses, and telephone numbers of all persons with knowledge of the facts asserted.

As to all of the affirmative defenses, plaintiff argues that NNI has evaded answering subsection (c), by either identifying no documents or vaguely identifying documents.

NNI essentially argues that its responses are proper and contain all of the required information.

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.”

NNI’s responses are not “as complete and straightforward as the information reasonably available to the responding party,” as required. The responses are evasive, and it appears as though no effort whatsoever was put into providing the information sought.

The interrogatory itself is clear and leaves no question what is being sought. NNI will be ordered to provide the information sought in a complete and straightforward response. For example, if NNI has facts upon which to base its denial or affirmative defense, NNI will state all of those facts. If NNI does not have any facts upon which the denial or affirmative defense is based, NNI shall so state. NNI shall also provide complete and clear information that responds to subsections (b) and (c).

Although plaintiff did refer to the incorrect code section in his moving papers, as pointed out by NNI, the relevant code section pertaining to NNI’s response to subsection (c) provides:

“If the answer to an interrogatory would necessitate the preparation or the making of a compilation, abstract, audit, or summary of or from the documents of the party to whom the interrogatory is directed, and if the burden or expense of preparing or making it would be substantially the same for the party propounding the interrogatory as for the responding party, it is a sufficient answer to that interrogatory to refer to this section and to specify the writings from which the answer may be derived or ascertained. This specification shall be in sufficient detail to permit the propounding party to locate and to identify, as readily as the responding party can, the documents from which the answer may be ascertained. The responding party shall then afford to the propounding party a reasonable opportunity to examine, audit, or inspect these documents and to make copies, compilations, abstracts, or summaries of them.” (Code Civ. Proc., § 2030.230; italics added.)

NNI clearly did not comply with the requirement that the specification be in sufficient detail to permit plaintiff to locate and to identify, as readily as NNI, the documents. NNI’s responses such as “Personnel documents regarding Defendant Rodriguez’s job title,” fall far short.

Additionally, the court finds no merit to any of NNI’s boilerplate objections, other than those based on privilege. All of NNI’s objections to the form interrogatories - general, set one are overruled except those based on privilege. NNI will be ordered to provide a further complete and code-compliant response.

Plaintiff did not request sanctions in connection with the motion to compel. Had he done so, the court would have been inclined to grant them upon a proper declaration of fees and costs incurred. NNI’s opposition, and failure to provide complete code-compliant responses, was wholly without justification.

            Form Interrogatories - Employment, Set One

Plaintiff seeks to compel further responses to form interrogatories - employment, set one Nos. 201.1, 201.2, 201.4, 201.6, 207.1, 211.1, and 216.1, on the grounds that the verified response “is non-responsive, non-substantive, unsatisfactory, inadequate, incomplete, and evasive,” and that NNI’s objections are “boilerplate,” “untenable, generic and unsupported by any meritorious argument.” (Notice of Motion, p. 2, ll. 3-8.)

NNI argues that it has provided full and complete code-compliant responses based on the information available at the time the responses were served.

As relevant to this motion, the form interrogatories set forth definitions, including:

“EMPLOYMENT means a relationship in which an EMPLOYEE provides services requested by or on behalf of an EMPLOYER, other than an independent contractor relationship.”

EMPLOYEE means a PERSON who provides services in an EMPLOYMENT relationship and who is a party to this lawsuit. For purposes of these interrogatories, EMPLOYEE refers to Plaintiff John Doe.”

EMPLOYER means a PERSON who employs an EMPLOYEE to provide services in an EMPLOYMENT relationship and who is a party to this lawsuit. For purposes of these interrogatories, EMPLOYER refers to Defendant Norman’s Nursery, Inc.”

“ADVERSE EMPLYMENT ACTION means any TERMINATION, suspension, demotion, reprimand, loss of pay, failure or refusal to hire, failure or refusal to promote, or other action or failure to act that adversely affects the EMPLOYEE’S rights or interests and which is alleged in the PLEADINGS.”

“TERMINATION means the actual or constructive termination of employment and includes a discharge, firing, layoff, resignation, or completion of the term of the employment agreement.” (FIs Sec. 4; italics added.)

Interrogatory No. 201.1 asks:

“Was the EMPLOYEE involved in a TERMINATION? If so:

            “(a) state all reasons for the EMPLOYEE’S TERMINATION;

            “(b) state the name, ADDRESS, and telephone number of each PERSON who participated in the TERMINATION decision;

            “(c) state the name ADDRESS, and telephone number of each PERSON who provided any information relied upon in the TERMINATION decision; and

            “(d) identify all DOCUMENTS relied upon in the TERMINATION decision.”

NNI responded:

“Defendant objects to Plaintiff’s interrogatory on the grounds the interrogatory, including the legal term of art “EMPLOYEE” which incorporates a legal term of art “EMPLOYMENT Relationship,” is vague, ambiguous, overbroad, susceptible to a variety of interpretations and to the extent it seeks a legal conclusion. Defendant objects to this interrogatory on the grounds it calls for speculation and lacks foundation. Defendant objects to this interrogatory to the extent it seeks information protected from disclosure by the right to privacy of third-party non-litigants pursuant to Article I, Section 1 of the California Constitution. Defendant objects to this interrogatory to the extent it seeks to discover information protected by the attorney work-product doctrine and/or the attorney-client privilege.

Subject to and without waiving the forgoing objections, and as Defendant understands the interrogatory, Defendant responds as follows: No.”

Interrogatories Nos. 201.2 and 201.4 seek information dependent on NNI acknowledging that plaintiff was involved in a termination. As to each, NNI asserted a list of objections and then stated that NNI did not terminate plaintiff’s employment.

As an initial matter, NNI’s assertion that EMPLOYEE and EMPLOYMENT Relationship are legal terms of art, is without merit. They are simple to understand, specially defined, terms. Any objection to the terms is overruled. Likewise, none of the other boilerplate objections asserted by NNI, other than those based on privilege, have merit and are also overruled.

The issue with these interrogatories is that NNI is apparently refusing to accept the special definition of TERMINATED. As is noted above, that includes plaintiff’s resigning from the position.

Because the court cannot order NNI to admit that plaintiff was involved in a termination, the court will not order NNI to amend the responses to Nos. 201.1, 201.2, or 201.4, claiming that plaintiff was not involved in a termination. However, the responses were signed under penalty of perjury and based on NNI’s own arguments in opposition to the present motion, as well as other statements in discovery responses, plaintiff was involved in a termination.

NNI should seriously consider providing amended responses of their own accord to avoid the potential consequences of their current responses.

Interrogatory No. 201.6 asks:

“Has any PERSON performed any of the EMPLOYEE’S former job duties after the EMPLOYEE’S TERMINATON or demotion? If so:

            “(a) state the PERSON’S name, job title, ADDRESS, and telephone number;

            “(b) identify the duties; and

            “(c) state the date on which the PERSON started to perform the duties.”

NNI provides the same list of boilerplate objections, which will again be over-ruled except those based on privilege, and then states: “Yes, although there is no singular employee who specifically took over Plaintiff’s former job duties after Plaintiff resigned. Defendant did not terminate Plaintiff’s employment.”

NNI answered in the affirmative and is required to provide complete code-compliant responses to subsections (a) through (c). Simply because NNI claims that it was “no singular employee,” does not excuse NNI from providing the required information. The motion to compel a further response to No. 201.6 will be granted.

Interrogatory 207.1 asks:

“Were there any internal written policies or regulations of the EMPLOYER that apply to the making of a complaint of the type that is the subject matter of this lawsuit? If so:

            “(a) state the title and date of each DOCUMENT containing the policies or regulations and a general description of the DOCUMENT’S contents;

            “(b) state the manner in which the DOCUMENT was communicated to EMPLOYEES;

            “(c) state the manner, if any, in which EMPLOYEES acknowledged receipt of the DOCUMENT or knowledge of its contents, or both;

            “(d) state, if you contend that the EMPLOYEE failed to use any available internal complaint procedures, all facts that support that contention; and

            “(e) state, if you contend that the EMPLOYEE’S failure to use internal complaint procedures was excused, all facts why the EMPLOYEE’S use of the procedures was excused.”

NNI provides the same list of boilerplate objections, which will again be over-ruled except those based on privilege, and then states:      

“(a) Subject to and without waiving said objections, Defendant responds as follows: Pursuant to Code of Civil Procedure section 2030.230, because the answer to this interrogatory would necessitate the preparation or the making of a compilation and/or summary of documents, Defendant elects to produce documents in lieu of a written response.

“(b) Defendant provided a physical copy in the language in which the employee is most comfortable speaking (Spanish).

“(c) Plaintiff signed an acknowledgement confirming receipt of the applicable policies.

“(d) Plaintiff did not complain of any harassment that occurred towards him. Plaintiff did not complain of any discrimination or issues.

“(e) Defendant does not make such a contention.”

NNI provided a supplemental response with the objections, which are overruled except as to privilege, and adds:

“Yes.

“(a) Employee Handbook;

“(b) Handbooks are presented to employees at the time of hire, and as the documents are updated;

“(c) Employees sign an acknowledgment;

“(d) Yes. Plaintiff did not complain about any alleged sexual harassment during his employment with Defendant;

“(e) Defendant does not make such a contention.”

Plaintiff argues that NNI’s failure to state the date and a description of the document. NNI argues that it produced a copy of the employee handbook pursuant to Code of Civil Procedure section 2030.230 (the language of which is quoted above), and that the employee handbook “clearly indicates a September 2020 date.”

While the court considers it a minor technicality, stating the title and date of an employee handbook would not “necessitate the preparation or the making of a compilation, abstract, audit, or summary of or from the documents,” which would allow the production of the document in lieu of providing the information requested.

As such, the motion to compel a further response, to subsection (a) will be granted.

Interrogatory No. 211.1 requires NNI to:

“Identify each type of BENEFIT to which the EMPLOYEE would have been entitled, from the date of the ADVERSE EMPLOYMENT ACTION to the present, if the ADVERSE EMPLOYMENT ACTION had not happened and the EMPLOYEE had remained in the same job position. For each type of benefit, state the amount the EMPLOYER would have paid to provide the benefit for the EMPLOYEE during this time period and the value of the BENEFIT to the EMPLOYEE.”

After setting forth boilerplate objections, which are again overruled except as to privilege, NNI states: “Defendant objects on the grounds that this interrogatory is premature as set forth in the instructions of these Interrogatories, Section 2(d).”

NNI then served a supplemental response, reasserting the objections, which are overruled, and stating: “Plaintiff earned wages at the rate of $16/hour, and was eligible to receive company-sponsored medical, dental, and vision insurance benefits. Discovery is ongoing.”

NNI then provided a further supplemental response, reasserting objections, which are overruled, and stating: “Plaintiff earned wages at the rate of $16/hour, and was eligible to receive company-sponsored medical, dental, and vision insurance benefits. Additionally, Defendant refers to documents bearing Bates numbers NN_00029 through NN_00037, which reflect Plaintiff’s elected benefits in relation to his employment with Defendant. Discovery is ongoing.”

According to plaintiff: “In its November 16, 2023 letter, Defendant contends: “ ‘Norman’s will further supplement its response to this interrogatory.’ ” However, to  date, and after multiple follow-up efforts from Plaintiff’s counsel, Defendant has failed to supplement its response to this interrogatory.” (Sep. Stmnt., p. 13, ll.17-21.)

In opposition, NNI argues that specifying the writings, pursuant to Code of Civil Procedure section 2030.230, is proper because plaintiff broadly seeks information regarding benefits that would require the creation of a summary, compilation, or report.

The court does not have the documents that NNI represents it provided to plaintiff. However, as with interrogatory No. 207.1, the response would not “necessitate the preparation or the making of a compilation, abstract, audit, or summary of or from the documents.”  NNI simply needs to provide the information requested in the interrogatory. NNI will be ordered to provide a complete code-compliant response to No. 211.1, without objections except as to privilege.

Interrogatory No. 216.1 is identical to interrogatory No. 15.1 contained in the general interrogatories, which is discussed above. NNI’s responses are the same as they were for interrogatory No. 15.1.

The motion to compel a further response to No. 216.1 will be granted for the same reasons, and on the same terms, as No. 15.1.

            Special Interrogatories, Set One

Plaintiff moves to compel further code-compliant responses to special interrogatories, set one Nos. 3, 5, 7, 8, 12, 22, 24, 26, 27, 28, 39, 40, 46, 47, 48, 49, 50, 51, 52, 53, 54, 63, and 76.

As to all of the disputed special interrogatories, unless otherwise specifically sustained, NNI’s objections are overruled, except for those based on privilege.

NNI argues that it has provided complete code-compliant responses.

As with some of the other interrogatories discussed above, NNI relies on Code of Civil Procedure section 2030.230 and directs plaintiff to documents. The court has reviewed the interrogatories in question and find that the following special interrogatories should have been responded to directly as the response would not “necessitate the preparation or the making of a compilation, abstract, audit, or summary of or from the documents:” Interrogatories Nos. 54, 63, and 76. NNI will be ordered to provide further code-compliant responses.

Interrogatories Nos. 3, 24, 27, 28, 46, 47, 48, 49, 50, 51, 52,  and 53 do “necessitate the preparation or the making of a compilation, abstract, audit, or summary of or from the documents,” and NNI has directed plaintiff to specific responsive documents. NNI will not be ordered to provide further responses to those interrogatories.

Special interrogatory No. 5 reads: “Describe, in detail, YOUR hiring process of Defendant CUAUHTEMOC RODRIGUEZ, including but not limited to, the date and method by which Defendant CUAUHTEMOC RODRIGUEZ applied to work for YOU, the position for which he applied, the date and method by which YOU interviewed him, all PERSONS involved in his interview process, all PERSONS involved in the decision to hire him, the date YOU hired him, and his start date.”  NNI, in a supplemental response, stated: “Cuauhtemoc Rodriguez first applied for employment with Norman’s Nursery on or about February 10, 2012. Defendant lacks sufficient information to state who interviewed Plaintiff or to provide details about the interview process. Discovery is ongoing.” NNI argues that it has provided as much information as it was able to provide given that Rodriguez was hired over a decade ago. Plaintiff cites the incorrect code section in support of his argument for compelling a further response. Code of Civil Procedure section 2031.230, in plaintiff’s separate statement, applies to requests for production of documents rather than interrogatories. However, NNI failed to provide a complete code-compliant response as required by Code of Civil Procedure 2030.220. NNI did not address: (1) the method by which Rodriguez applied; (2) the position for which he applied; (3) the persons involved in the decision to hire Rodriguez; (4) the date he was hired; and (5) his start date. NNI will be ordered to provide a further response.

Special interrogatory No. 7 reads: “Describe, in detail, any and all background checks YOU conducted of Defendant CUAUHTEMOC RODRIGUEZ prior to hiring him, including the date the background check was conducted and the results.” NNI responded, in a supplemental response: “Defendant does not conduct background checks on potential hires.” Plaintiff argues that the response does not answer the question because the interrogatory pertains specifically to Rodriguez. While it is certainly a reasonable inference that NNI is saying that no background check of Rodriguez was conducted, NNI should have simply stated so. The response only indicates that NNI does not conduct background checks on potential hires. The response says nothing about whether background checks are ever conducted. NNI will be ordered to provide a further code-compliant response that directly addresses the interrogatory.

As special interrogatory No. 8 requires NNI to identify documents that relate to NNI’s response to special interrogatory No. 7, and NNI will be ordered to provide a further response to No. 7, NNI will be ordered to provide a further code-compliant response to No. 8.

Special interrogatory No. 12 asks: “During Plaintiff’s EMPLOYMENT, did Defendant CUAUHTEMOC RODRIGUEZ need to be in close physical proximity to Plaintiff to complete his job duties? If so, describe, in detail, how often RODRIGUEZ needed to be in close physical proximity to Plaintiff and for which job function.” NNI responded: “Cuauhtemoc Rodriguez and all other employees working alongside Plaintiff at the Camarillo yard would at times work in proximity to one another.” NNI argues that the “interrogatory as drafted is vast in scope and specific information is not possible as the question is presented.” (Resp. Sep. Stmnt, p. 11, ll. 14-15.) The interrogatory is poorly drafted as it is open to interpretation as to what is meant by “close physical proximity.” Close physical proximity could mean inches from one another, or it could mean in the same building or on the same block. NNI’s objection that the term is vague and ambiguous is sustained and NNI will not be ordered to provide a further response.

Special interrogatory No. 22 reads: “State a timeline of Defendant CUAUHTEMOC RODRIGUEZ’s work location throughout his EMPLOYMENT with YOU, detailing the address of each location where RODRIGUEZ worked, the date he worked at each location, and any and all reasons for any change in location.” NNI responded: “For the entirety of his employment with Defendant, Cuauhtemoc Rodriguez has worked at Defendant’s Camarillo location.” The interrogatory is clear and straightforward. The response is not. NNI could, and should, have simply stated the address of its Camarillo location and the dates that Rodriguez worked there. NNI will be ordered to provide a further response.

Special interrogatory No. 26 reads: “Describe in detail, all COMMUNICATION between Maria Alonzo’s assistant Evelyn DOE and Plaintiff from about November 01, 2019 through about March 18, 2022, including but not limited to the date and substance of each COMMUNICATION.” NNI responded: “Evelyn Preciado did not exchange such communications with Plaintiff between November 1, 2019 and March 18, 2022.” Plaintiff takes issue with the inclusion of the word “such.” The court does not find that the inclusion of the word “such” changes the meaning of the response. NNI is stating, under oath, that there were no communications between Evelyn and plaintiff during the subject timeframe. No further response will be ordered.

Special interrogatory No. 39 reads: “Describe, in detail, all YOUR COMMUNICATIONS with Defendant CUAUHTEMOC RODRIGUEZ regarding Plaintiff from about November 01, 2019 through the present, including the dates of each COMMUNICATION, substance of each COMMUNICATION, and names of all PERSONS involved.” NNI responded: “Prior to the filing of the instant lawsuit, Defendant interviewed Cuauhtemoc Rodriguez regarding Plaintiff’s claims as alleged in his DFEH complaint.” The response is clearly incomplete for obvious reasons. NNI will be ordered to provide a complete code-compliant further response. As the nature of this interrogatory will almost certainly include some information protected by the attorney client privilege and the work product doctrine, the court reiterates that objections based on privilege are not waived.

Special interrogatory No. 40 asks NNI to: “Identify all DOCUMENTS that evidence or support YOUR response to Special Interrogatory No. 39.” NNI responded: “No such documents exist.” Plaintiff argues that Code of Civil Procedure section 2031.230 requires NNI to specify whether the requested document “has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of” NNI. Plaintiff is incorrect. As noted above, that code section applies to requests for production of documents rather than interrogatories. There is no similar requirement for responding to interrogatories that ask about the existence of documents. NNI will not be ordered to provide a further response.

            Request for Production of Documents, Set One

Plaintiff moves to compel further code-compliant responses to requests for production of documents, set one Nos. 26, 28, 40, 47, 50, 59, 63, and 64.

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).)

“A representation of inability to comply with the particular demand for inspection, copying, testing, or sampling shall affirm that a diligent search and a reasonable inquiry has been made in an effort to comply with that demand. This statement shall also specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party. The statement shall set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item.” (Code Civ. Proc., § 2031.230.)

Code of Civil Procedure, section 2031.240, provides:

“(a) If only part of an item or category of item in a demand for inspection, copying, testing, or sampling is objectionable, the response shall contain a statement of compliance, or a representation of inability to comply with respect to the remainder of that item or category.

“(b) If the responding party objects to the demand for inspection, copying, testing, or sampling of an item or category of item, the response shall do both of the following:

“(1) Identify with particularity any document, tangible thing, land, or electronically stored information falling within any category of item in the demand to which an objection is being made.

“(2) Set forth clearly the extent of, and the specific ground for, the objection. If an objection is based on a claim of privilege, the particular privilege invoked shall be stated. If an objection is based on a claim that the information sought is protected work product under Chapter 4 (commencing with Section 2018.010), that claim shall be expressly asserted.

“(c)(1) If an objection is based on a claim of privilege or a claim that the information sought is protected work product, the response shall provide sufficient factual information for other parties to evaluate the merits of that claim, including, if necessary, a privilege log.

“(2) It is the intent of the Legislature to codify the concept of a privilege log as that term is used in California case law. Nothing in this subdivision shall be construed to constitute a substantive change in case law.”

A motion to compel further responses to a demand for production of documents must “set forth specific facts showing good cause justifying the discovery sought by the demand.” (Code Civ. Proc., § 2031.310, subd. (b)(1); Kirkland v. Superior Court (2002) 95 Cal.App.4th 92, 98.) “[U]nless there is a legitimate privilege issue or claim of attorney work product, [the] burden [of showing good cause for the request] is met simply by a fact-specific showing of relevance.” (TBG Ins. Services Corp. v. Superior Court (2002) 96 Cal.App.4th 443, 448; see also Code Civ. Proc., § 2017.010.) Plaintiff has set forth specific facts showing good cause justifying the discovery sought.

“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).)

Request No. 26 seeks: “All DOCUMENTS which evidence or RELATE TO any of Plaintiff’s COMMUNICATIONS with Defendant CUAUHTEMOC RODRIGUEZ, from the time period of about May 01, 2019 through about March 18, 2022.” NNI responded: “Despite a diligent search and reasonable inquiry, Defendant is unable to locate any documents responsive to this request within its possession and control. If such documents exist, Defendant believes them to be in possession of Defendant Cuauhtemoc Rodriguez. The response is technically fails to comply with Code of Civil Procedure section 2031.230 because it does not “specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party.” NNI will be ordered to provide a further response the fully complies.

Request No. 28 seeks: “All video recordings from YOUR Via Real location in Carpinteria CA recording any area which Plaintiff would work from about May 01, 2019 through about March 18, 2022 in their native, unedited format.” NNI responded: “Despite a diligent search and reasonable inquiry, Defendant is unable to locate any documents responsive to this request within its possession and control. If such documents existed, they have been lost or destroyed.” This response is insufficient for the same reason that NNI’s response to No. 26 is insufficient. Additionally, the response must “set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item.” A further response will be ordered.

Although request No. 40 is included in the notice of motion, it was not included in the separate statement. As such, a further response will not be ordered.

Request No. 47 seeks: “All DOCUMENTS which evidence Defendant CUAUHTEMOC RODRIGUEZ work schedule, including any changes to his work schedule, from about May 2019 through the present.” NNI responded: “Defendant will produce Defendant Rodriguez’s personnel file documents in response to this request as documents bearing Bates numbers NN_000640 through NN_000656.” Plaintiff argues that the referenced documents do not “contain anything related to Defendant Cuauhtemoc Rodriguez’s work schedule” and that, during the meet and confer process,  NNI agreed to produce the requested documents. NNI does not directly address this argument and instead claims to have complied with the request. The court finds plaintiff’s assertion, that the referenced documents did not contain the information sought, to be credible. NNI will be ordered to provide a further written response and to comply with its representation that it would produce responsive documents.

Request No. 50 seeks: “The anti-SEXUAL HARASSMENT training materials YOU contend Defendant Cuauhtemoc Rodriguez was provided and/or completed during his EMPLOYMENT with YOU including his receipt of said materials and the date of receipt.” NNI responded: “Despite a diligent search and reasonable inquiry, Defendant is unable to locate documents responsive to this request within its possession and control. Such documents are in the possession of Defendant Cuauhtemoc Rodrigues and/or providers of training utilized by Defendant.” Plaintiff argues that NNI’s response “does not make sense because Defendant clearly had Cuauhtemoc Rodriguez complete training since it has produced multiple certificates of Mr. Rodriguez’s completion of training . . ..” The court will not determine whether NNI’s response is truthful. NNI provided the response under penalty of perjury. If the response is untrue, NNI should consider amending the response on its own accord, but the court will not order a further response.

Request No. 59 seeks: “All COMMUNICATIONS between Plaintiff and Defendant CUAUHTEMOC RODRIGUEZ during Plaintiff’s EMPLOYMENT with YOU through the present, including but not limited to all electronic mail, text messages, social media messages, voicemails, and all other COMMUNICATIONS.” NNI responded: “Despite a diligent search and reasonable inquiry, Defendant is unable to locate any documents responsive to this request within its possession and control. If such documents exist, they are in the possession of Defendant Rodriguez and/or Plaintiff.” The response is deficient for the same reasons as the responses to requests Nos. 26 and 28. NNI will be ordered to provide a further response.

Request No. 63 seeks: “All DOCUMENTS RELATING TO the STRUCTURE OF NORMAN’S NURSERY, INC.’S local Human Resources department for the locations where Plaintiff worked.” NNI responded: “Defendant will produce all documents responsive to this request within its possession and control as documents bearing Bates numbers NN_00638 - NN_00639.” Plaintiff argues that the documents identified by NNI are not related to the structure of the human resources department but, rather, identifies certificates of Cuauhtemoc Rodriguez’s completion of training. Again, NNI fails to address plaintiff’s argument and states that it has complied. NNI will be ordered to provide a further response.

Request No. 64 seeks: “All DOCUMENTS RELATING TO the STRUCTURE OF NORMAN’S NURSERY, INC’s corporate Human Resources department.” NNI responded exactly the same as it did to Request No. 63. NNI will be ordered to provide a further response for the same reason as it will be ordered to further respond to No. 63.