Michael P Sipiora vs Santa Barbara Graduate School Inc

Case Number

24CV00466

Case Type

Hearing Date / Time

Fri, 11/08/2024 - 10:00

Nature of Proceedings

Motion to Allow Trial by Jury; Motion to Compel

Tentative Ruling

For all reasons discussed herein:

1. Plaintiff’s motion to allow trial by jury is granted.

2. Plaintiff’s motion to compel further responses to requests for production of documents, set two, and request for sanctions, is granted in part and denied in part as follows:

            a. The motion to compel is granted as to request for production number 77.

            b. Defendant shall provide a further, code-compliant, further response, without objection except as to privilege, no later than November 27, 2024.

            c. For any documents withheld on a claim of privilege, defendant shall provide 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 plaintiff and the court to evaluate the claim of privilege.

            d. The motion to compel is denied as to all other requests for production included in plaintiff’s motion.

            e. No sanctions are awarded in favor of any party.

Background: 

This action commenced on January 29, 2024, by the filing of the complaint by plaintiff Michael P. Sipiora (“Sipiora”) against defendant Santa Barbara Graduate School, Inc. dba Pacifica Graduate Institute (“Pacifica”).

On March 15, 2024, prior to an answer being filed, Sipiora filed his operative verified first amended complaint (“FAC”), alleging violations of the Government Code, Labor Code, Public Policy, and Breach of Contract. Sipiora alleges that he was employed with Pacifica as a professor, under a series of written contracts, for more than 10 years before he was effectively terminated on July 29, 2022, in retaliation for objecting to and complaining about Pacifica’s harassment and mistreatment of female members of Pacifica faculty, in violation of California law including the California Fair Employment and Housing Act.

On April 30, 2024, Pacifica filed its verified answer to the FAC, admitting some allegations and denying others. Pacifica also sets forth 21 affirmative defenses.

On February 23, 2024, Sipiora propounded requests for production of documents, set one (“set one”), on Pacifica. (Medina Decl., ¶ 2 & Exh. 1.) Set one contained requests Nos. 1 through 75. (Ibid.)

On May 3, 2024, Pacifica served responses to set one. (Medina Decl., ¶ 3 & Exh. 2.) Sipiora’s deadline to file a motion to compel further response to set one was June 20, 2024. (Medina Decl., ¶ 4.) The parties engaged in the meet and confer process regarding set one, as well as other discovery responses but were unable to fully resolve the dispute. (Ibid.)

On July 3, 2024, Sipiora’s counsel called Pacifica’s counsel to inform her that he would be filing a motion to compel by July 19, 2024, which was 29 days after the deadline to file a motion to compel. (Medina Decl., ¶ 5.) Pacifica did not grant Sipiora an extension in which to file a motion to compel. Sipiora did not file a motion to compel further responses to set one.

Twenty days later, on July 23, 2024, Sipiora propounded requests for production of documents, set two (“set two”), on Pacifica. (Medina Decl., ¶ 6 & Exh. 4; David Sipiora Decl., ¶ 5 & Exh. B.) On August 30, 2024, Pacifica served its responses to set two.

Following unsuccessful attempts to meet and confer regarding Pacifica’s responses, on October 11, 2024, Sipiora filed the present motion to compel further responses and for monetary sanctions. Pacifica opposes the motion.

Sipiora also moves to allow a jury trial after he waived his right to a jury trial by failing to timely pay the required jury fee deposit. The motion is unopposed.

Analysis:

            Motion to Allow Trial by Jury

Code of Civil Procedure section 631 provides, in part:

“(a) The right to a trial by jury as declared by Section 16 of Article I of the California Constitution shall be preserved to the parties inviolate. In civil cases, a jury may only be waived pursuant to subdivision (f).

“(b) At least one party demanding a jury on each side of a civil case shall pay a nonrefundable fee of one hundred fifty dollars ($150), unless the fee has been paid by another party on the same side of the case. . . .

“(c) The fee described in subdivision (b) shall be due on or before the date scheduled for the initial case management conference in the action . . .

“(f) A party waives trial by jury in any of the following ways: . . .

            “(5) By failing to timely pay the fee described in subdivision (b), unless another party on the same side of the case has paid that fee.

“(g) The court may, in its discretion upon just terms, allow a trial by jury although there may have been a waiver of a trial by jury.”

Sipiora requested a jury trial by way of his original complaint as well as the FAC. On May 15, 2024, Sipiora filed a case management statement wherein he again requested a jury trial. At that time, Sipiora had not paid the required $150 jury fee.

After business hours on July 12, 2024, it came to the attention of Sipiora’s counsel, David Sipiora, that due to a miscommunication between himself and co-counsel, the $150 jury fee had not been paid prior to the May 31, 2024, case management conference as required. (Michael Sipiora Decl., ¶ 7.)

On July 14, 2024, Sipiora filed and served his demand for jury trial and notice of civil deposit paying the jury fee to the court. Court records reflect the payment of the fee.

“[T]he section 631(g) inquiry depends on consideration of multiple factors and not just on considerations of hardship standing alone. As we read them, the cases stand for this modest but important proposition: When a party that has timely given notice that it desires trial by jury then loses the jury right because of technical noncompliance with some element of statutory procedure — such as failure to pay jury fees at the right time or in the right amount — lack of hardship to the other parties or the court is generally controlling, absent other factors that weigh against relief.” (TriCoast Builders, Inc. v. Fonnegra (2024) 15 Cal.5th 766, 782.)

Here, Sipiora consistently represented that he was demanding a jury trial. Due to a mistake or inadvertence, Sipiora did not timely pay the jury fee deposit but, upon realizing the error, promptly paid. There does not appear to be any hardship to Pacifica by allowing Sipiora a jury trial, and there do not appear to be any factors that weigh against relieving Sipiora from his jury waiver. The motion to allow jury trial will be granted.

            Motion to Compel Further Responses to Request for Production of Documents, Set Two:

Plaintiff moves to compel further responses to requests for production of documents, set two, Nos. 77, 82-85, 87-135, 147, and 148.

“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.)

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.)

            Request No. 77:

RFP No. 77 requests: “All DOCUMENTS containing any STATEMENT to or from Plaintiff CONCERNING alleged acts of discrimination, harassment, retaliation, intimidation, hostility, ridicule, condescension, or any other form of alleged mistreatment or professional behavior by Pacifica directed to female faculty or staff at Pacifica on or after January 1, 2020.” 

Pacifica responded to RFP No. 77 as follows: “Defendant objects to this request as it seeks information and/or documents containing confidential information, the disclosure of which may violate third party constitutional rights of privacy. Plaintiff has not shown a particularized need for the confidential information sought. Defendant further objects to the discovery request on the grounds that it is vague, ambiguous, and uncertain and calls for a legal conclusion. Defendant objects on the grounds that this request is also overbroad in scope and on that basis, is unduly burdensome. Defendant objects to the request on the grounds that it seeks information that is neither relevant nor reasonably calculated to lead to the discovery of admissible evidence, and therefore exceeds the scope of permissible discovery. Defendant objects to this request to the extent it seeks information and/or documents protected by the attorney-client privilege or attorney work product doctrine.”

Sipiora argues, among other things, that “the need for the information is compelling because it goes to the elements of Plaintiff’s causes of action – namely, the existence of discrimination or other illicit behavior by Pacifica and Plaintiff’s engagement in “ ‘protected activity’ ” under the FEHA, specifically, reporting that illicit activity.” (Sep. Statement, p. 9, ll. 17-22.) Sipiora has met his initial burden of making a fact specific showing of relevance.

The court finds that Sipiora has set forth sufficient facts justifying the discovery sought. By doing so, the burden shifts to Pacifica to justify its objections. The court finds Pacifica’s arguments in support of its objections unpersuasive. The information sought is clearly relevant, or reasonably calculated to lead to the discovery of admissible evidence, and Pacifica’s objections, except those based on privilege, will be overruled. Any privacy interest that a third-party may have in statements made to or from Sipiora is outweighed by Sipiora’s rights to identify witnesses and evidence in support of his case. A further response will be ordered.

            Requests Nos. 82-85, 87-135, and 147

As noted above, set one contained requests Nos. 1 through 75. The parties met and conferred regarding what Sipiora deemed insufficient responses. The parties were unable to resolve the dispute, but Sipiora missed his deadline to file a motion to compel further responses.

Also as noted above, on July 23, 2024, Sipiora propounded set two. Set two contains many of the same requests as set one, the only difference being the addition or modification of a timeframe.

For example:

Set one No. 9 requests: “All DOCUMENTS CONCERNING any grievances, complaints, legal claims, or allegations submitted to YOU or made known to YOU since 2010 CONCERNING alleged acts of gender discrimination or harassment committed by YOU including but not limited to grievances, complaints, or legal claims, and any reports, investigations, characterizations, responses, discussions, reactions, evaluations, or settlement agreements CONCERNING such grievances, complaints, or legal claims.” (Italics added.)

Set two No. 82 requests: “All DOCUMENTS CONCERNING any grievances, complaints, legal claims, or allegations submitted to YOU or made known to YOU in the past 10 years CONCERNING alleged acts of gender discrimination or harassment committed by YOU including but not limited to grievances, complaints, or legal claims, and any reports, investigations, characterizations, responses, discussions, reactions, evaluations, or settlement agreements CONCERNING such grievances, complaints, or legal claims.” (Italics added.)

The only difference between the two requests is that “since 2010” was changed to “in the past 10 years.” The requests in set two follow this pattern throughout. In fact, they are in the same order. Requests Nos. 82-85, of set two, all match up exactly with requests Nos. 9-12 other than the noted minor modification.

Requests Nos. 87-135, and 147, of set two, likewise follow the same pattern, except that in set one the requests do not contain a timeframe, while in set two, Sipiora adds: “on or after January 1, 2020,” for the corresponding requests. Otherwise, they are identical.

Code of Civil Procedure section 2031.310, subdivision (c), which requires: “Unless notice of this motion is given within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the demanding party and the responding party have agreed in writing, the demanding party waives any right to compel a further response to the demand.”

“We do not believe the 45–day limitation is “ ‘jurisdictional’ ” in the fundamental sense, but is only “ ‘jurisdictional’ ” in the sense that it renders the court without authority to rule on motions to compel other than to deny them.” (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.) The motion will be denied.

“[I]t would be an absurdity to say that a party who fails to meet the time limits of [former] section 2030 may avoid the consequences of his delay and lack of diligence by propounding the same question again. Such a construction of the statute would obviously encourage delay and provide no incentive to attempt to resolve any dispute with the opposing party. The Legislature has explicitly stated that unless a party moves to compel further response within 45 days of the unsatisfactory response, he waives any right to compel a further response.” (Professional Career Colleges, Magna Institute, Inc. v. Superior Court (1989) 207 Cal.App.3d 490, 494.)

While arguing to the contrary in parts of his motion, Sipiora essentially admits that set two was propounded because he had failed to timely file a motion to compel as to set one. (See David Sipiora Decl., ¶¶ 12-23.)

To allow a party to reset the clock on a motion to compel by simply making slight modifications to, or adding, a timeframe would defeat the purpose of having a deadline in which to file a motion to compel. The requests are the same and seek the same documents. Adding “on or after January 1, 2020” or “in the past 10 years” does not change what is being sought. Further, Sipiora admits that: “The principal focus of the FAC, however, is the behavior of Provost Peter Rojcewicz (hired in approximately 2020); behavior that was tolerated and approved by Pacifica President Joseph Cambray.” (Motion, p. 6, ll. 21-23.) Clearly, the documents sought in set one would have only existed during the timeframe added in set two. It is disingenuous to claim that set two does not seek the exact same documents as set one.

Further, despite Sipiora’s implied arguments that the timeframe for set one was a basis for Pacifica not producing requested documents (Reply, p. 3, ll. 5-10), that does not appear to be the case. Sipiora points to Exhibit I in support of the argument. The portion of Exhibit I cited by Sipiora pertains solely to set one request No. 4 and is based on Pacifica’s objection that the request is overbroad and unduly burdensome. In reviewing all of the exhibits presented by Sipiora and Pacifica, it does not appear that the timeframe was one of the issues in dispute. And, to the extent it may have been, it was an extremely minor issue. Most of the dispute was clearly centered around relevancy, privacy rights of third parties, and claims of privilege.

Because Sipiora did not timely file a motion to compel further responses to set one, and requests Nos. 82-85, 87-135, and 147, of set two, are duplicative of those contained in set one, the motion as to those requests will be denied.

            Request No. 148

Request No. 148 requests: “ALL DOCUMENTS CONCERNING any actions taken by YOU after receiving any threats or notices of potential litigation on or after January 1, 2020, including notices of possible litigation received from Robyn Cass, Oksana Yakushiko, Jennifer Sandoval, and/or Plaintiff.”

Pacifica responded to request No. 148: “Defendant objects on the ground this request is duplicative of Plaintiff’s Notice of Deposition of Defendant’s Person Most Knowledgeable with Request for Production of Documents, No. 73. Defendant objects to this request as it seeks information and/or documents containing confidential information, the disclosure of which may violate third party constitutional rights of privacy. Plaintiff has not shown a particularized need for the confidential information sought. Defendant further objects to the discovery request on the grounds that it is vague, ambiguous, and uncertain as to the term and/or phrase “ ‘notices of potential litigation,’ ” “ ‘threats’ ” and “ ‘notices of possible litigation.’ ” Defendant objects on the grounds that this request is also overbroad and on that basis, is unduly burdensome. Defendant objects to the request on the grounds that it seeks information that is neither relevant nor reasonably calculated to lead to the discovery of admissible evidence, and therefore exceeds the scope of permissible discovery. Defendant objects to this request to the extent it seeks information and/or documents protected by the attorney-client privilege or attorney work product doctrine. Finally, Defendant objects on the grounds this request seeks confidential documents and/or information protected by Evidence Code sections 1119 and 1152.”

As Pacifica points out, the request is very broad, and as worded, potentially seeks documents about any type of potential litigation from anyone, including things such as slip and fall accidents or financial disputes. While the request may be read to only include documents relating to the four named persons, the use of the word “including,” rather than “from,” implies that it encompasses all other individuals. It appears from the exhibits submitted that this was brought to the attention of Sipiora’s counsel during the meet and confer process, but Sipiora’s counsel refused to narrow the scope of the request.

Also, Sipiora argues that the request “is relevant to issues of preservation of evidence and potential spoilation . . .”. (Sep. Stmnt in Support, p. 204, l. 27 - p. 205, l. 2; Reply, p. 11, l. 4-5.) That justification in no way explains why Sipiora should be able to obtain the requested documents or why they are relevant. Other than that, Sipiora solely attacks the objections made by Pacifica. Sipiora has failed to meet the initial burden of showing good cause justifying the discovery sought by the demand. As such, the motion to compel a further response to request No. 148 will be denied. The denial will be without prejudice for Sipiora to propound another non-duplicative request for production of documents that is more narrowly focused and seeks information that is either relevant to this action or is reasonably calculated to lead to the discovery of admissible evidence. The court notes that Sipiora is correct in his argument that he is permitted to seek the same documents by way of different statutory procedures. Thus, if he has requested them by way of a deposition, for example, he is not prevented from seeking them by way of a request for production of documents under Code of Civil Procedure section 2031.010, et seq. also.

            Sanctions

Both Sipiora and Pacifica seek monetary sanctions pursuant to Code of Civil Procedure sections 2020.010, 2023.030, and 2031.310.

The court “shall impose a monetary sanction . . . against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further response to a demand, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc., § 2031.310.)

As the motion will be partially granted and partially denied, no monetary sanctions will be ordered in favor of either party. Further, the circumstances existing around this dispute would make the imposition of sanctions unjust at this time.