On 05/04/2018 JOSEPH SHEPLER filed a Labor - Wrongful Termination lawsuit against BOARD OF TRUSTEE OF THE CALIFORNIA STATE U. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are SUSAN BRYANT-DEASON and RAFAEL A. ONGKEKO. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
RAFAEL A. ONGKEKO
BOARD OF TRUSTEES OF THE CALIFORNIA STATE
DOES 1 THROUGH 50
KENTON VICTOR B. RETIRED JUDGE
SABA RYAN D. ESQ.
COLLIER DUSTIN L.
SABA RYAN ESQ.
REYNOLDS CHRISTINE DIAZ
MCNULTY ELIZABETH V.
7/29/2020: Reply - REPLY PLAINTIFFS CONSOLIDATED REPLY IN SUPPORT OF MOTION TO COMPEL FURTHER RESPONSES TO PLAINTIFFS FIRST AND SECOND ROUND OF WRITTEN
12/13/2019: Separate Statement
12/13/2019: Declaration - DECLARATION OF DUSTIN L. COLLIER IN SUPPORT OF PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES TO PLAINTIFF'S FIRST ROUND OF WRITTEN DISCOVERY AND FOR SANCTIONS
12/13/2019: Declaration - DECLARATION OF DUSTIN L. COLLIER IN SUPPORT OF PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES TO PLAINTIFF'S SECOND ROUND OF WRITTEN DISCOVERY AND FOR SANCTIONS
6/14/2019: Minute Order - MINUTE ORDER (HEARING ON MOTION FOR STAY OF PROCEEDINGS (RES ID: 1722))
5/21/2019: Minute Order - MINUTE ORDER (HEARING ON DEMURRER - WITHOUT MOTION TO STRIKE PLAINTIFF'S FI...)
5/13/2019: Notice of Ruling
5/8/2019: Opposition - OPPOSITION PLAINTIFF'S OPPOSITION TO DEFENDANT'S DEMURRER TO THE FIRST AMENDED COMPLAINT
4/15/2019: Notice of Entry of Judgment / Dismissal / Other Order
4/4/2019: Amended Complaint
3/26/2019: Reply - REPLY TO THE OPPOSITION TO THE MOTION FOR LEAVE TO FILE A FIRST AMENDED COMPLAINT
2/28/2019: Notice of Change of Address or Other Contact Information
2/11/2019: Declaration - Declaration of Christine Diaz Reynolds
2/1/2019: Motion for Protective Order
8/6/2018: NOTICE OF CASE MANAGEMENT CONFERENCE
9/25/2018: CIVIL DEPOSIT -
7/9/2018: DEFENDANT BOARD OF TRUSTEES OF THE CALIFORNIA STATE UNIVERSITY'S ANSWER TO PLAINTIFF'S UNVERIFIED COMPLAINT
Hearing09/27/2021 at 08:30 AM in Department 73 at 111 North Hill Street, Los Angeles, CA 90012; Jury TrialRead MoreRead Less
Hearing09/13/2021 at 08:30 AM in Department 73 at 111 North Hill Street, Los Angeles, CA 90012; Final Status ConferenceRead MoreRead Less
Docketat 1:30 PM in Department 73; Trial Setting Conference - HeldRead MoreRead Less
Docketat 1:30 PM in Department 73; Hearing on Motion to Compel Further Discovery Responses ((Res ID 6627)) - HeldRead MoreRead Less
Docketat 1:30 PM in Department 73; Hearing on Motion to Compel Further Discovery Responses ((Res ID3461)) - HeldRead MoreRead Less
DocketMinute Order ( (Hearing on Motion to Compel Further Discovery Responses (Res ...)); Filed by ClerkRead MoreRead Less
DocketNotice (of Telephonic Appearance Via LA Court Connect by Plaintiff's Counsel Tyler C. Vanderpool and Dustin L. Collier); Filed by Joseph Shepler (Plaintiff)Read MoreRead Less
DocketDeclaration (of V. Joshua Socks in Support of Plaintiff?s Consolidated Reply in Support of Motion to Compel Further Responses to Plaintiff?s First and Second Round of Written Discovery); Filed by Joseph Shepler (Plaintiff)Read MoreRead Less
DocketObjection (To Evidence Submitted BY Defendant In Support of Oppositions to Motions to Compel); Filed by Joseph Shepler (Plaintiff)Read MoreRead Less
DocketReply (Plaintiff?s Consolidated Reply in Support of Motion to Compel Further Responses to Plaintiff?s First and Second Round of Written); Filed by Joseph Shepler (Plaintiff)Read MoreRead Less
DocketPROOF OF SERVICE SUMMONSRead MoreRead Less
DocketPROOF OF SERVICERead MoreRead Less
DocketProof of Service (not Summons and Complaint); Filed by Joseph Shepler (Plaintiff)Read MoreRead Less
DocketCASE MANAGEMENT STATEMENTRead MoreRead Less
DocketCase Management Statement; Filed by Joseph Shepler (Plaintiff)Read MoreRead Less
DocketNOTICE OF STATUS CONFERENCE AND ORDERRead MoreRead Less
DocketNotice of Status Conference filed; Filed by ClerkRead MoreRead Less
DocketCOMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL 1. RETALIATION N VIOLATION OF CAL. LABOR CODE 98.6; ETCRead MoreRead Less
DocketComplaint; Filed by Joseph Shepler (Plaintiff)Read MoreRead Less
DocketSUMMONSRead MoreRead Less
Case Number: BC705095 Hearing Date: August 12, 2020 Dept: 73
Rafael Ongkeko, Judge presiding
JOSEPH SHEPLER v. BOARD OF TRUSTEES OF THE CAL. SATE UNIVERSITY (BC705095)
Counsel for plaintiff: Dustin Collier; V. Joshua Socks (Collier Law Firm); Ryan Saba; Tyler Vanderpool (Rosen Saba)
Counsel for defendant/opposing party: Elizabeth McNulty, Christine Reynolds (Evans Fears & Schuttert)
Plaintiff’s Motion to Compel Further Responses re First Round of Discovery (filed 12/13/2019, as to RFP and Form (employment) and Special Interrogatories, set one)
Plaintiff’s Motion to Compel Further Responses re Second Round of Discovery (filed 12/13/2019, as to RFP and Special Interrogatories, set two)
The motions are granted in part and denied in part.
Defendant’s relevance/overbroad objections and limiting of information/discovery/documents to only seven (7) campuses is overruled.
Defendant is ordered to serve further responses that withdraw this objection and provide the information/documents that Defendant has been withholding based on this objection.
Defendant’s burdensome objection regarding ESI is sustained. However, because the information is relevant, to the extent Plaintiff still wants this information, Defendant is ordered to produce these documents, but only with Plaintiff bearing the costs for Defendant to do so. To the extent that some documents/review would be too expensive for Plaintiff, Plaintiff can decide for himself to narrow the scope of search terms and/or what documents Plaintiff wants Defendant to produce.
The court further finds that given that Defendants have served supplemental responses and that the court has ordered Defendant to serve further supplemental responses, the issue of whether or not Defendant’s substantive responses are compliant with the Discovery Act is moot.
The court denies Plaintiff’s request for sanctions.
Plaintiff’s evidentiary objections (filed 7/29/20): 1-2. Overruled.
Plaintiff’s Motions to Compel Further re First and Second Round of Discovery
On December 13, 2019, Plaintiff filed a (1) motion to compel further responses regarding Plaintiff’s first round of discovery—requests for production set one, special interrogatories set one, and form interrogatories (employment law) set one; and (2) motion to compel further responses regarding Plaintiff’s second round of discovery—requests for production, set two, and special interrogatories, set two. On July 17, 2020, Defendant filed an opposition to the two motions that raised substantially the same arguments. On July 29, 2020, Plaintiff filed a consolidated reply for both motions.
While the separate statements on the motions are lengthy, the main disputes in both motions are:
· Defendant’s withholding discovery and producing discovery responses related to only the seven campuses that Cal-OSHA did not investigate (rather than 21 of the 23 campuses for which Plaintiff alleges violations);
· Whether or not Plaintiff’s ESI request is overly burdensome; and
· Whether Defendant’s responses comply with the code.
I. Standard for Discovery
A party is entitled to seek all discovery that is relevant to the subject matter of the action. Cal. Civ. Proc. Code § 2017.010. The test for determining if something is discoverable is whether the requested matters “appears reasonably calculated to lead to the discovery of admissible evidence.” Id. Information is “relevant to the subject matter of the litigation” if it possibly assists the party in evaluating the case, preparing for trial, or aiding in settlement of the case. Gonzalez v. Super. Ct. (1995) 33 Cal.App.4th 1539, 1546. “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, may not use its discretion to extend the limits on discovery beyond those authorized by the Legislature, and should prefer partial to outright denials of discovery.” Williams v. Superior Ct. (2017) 3 Cal. 5th 531, 540. Accordingly, Courts liberally apply the "relevant" and "reasonably calculated to lead to discovery of admissible evidence" standards and generally rule in favor of permitting discovery. Colonial Life & Acc. Ins. Co. v. Super. Ct. (1982) 31 Cal. 3d 785, 790.
II. Seven (7) Campus Limitation—Overbroad Objection
The parties’ biggest dispute is Defendant’s overbroad objection—Defendant refuses to respond to any discovery/produce any documents and is withholding information to all but the seven campuses that California’s Department of Industrial Relations, Division of Occupational Safety & Health (“DOSH” and/or “DIR” ) did not investigate. The dispute centers around which section of Labor Code section 2699.3 applies. The relevant sections are:
· Step 1: Before an aggrieved employee may pursue a PAGA claim for OSHA violations, the party must first give notice only to the division. (Cal. Labor Code § 2699.3(b)(1)).
· Step 2: The division “shall inspect or investigate the alleged violations pursuant to the procedures specified in Division 5 (commencing with Section 6300).” (Cal. Labor Code § 2699.3(b)(2)(A)).
· Step 3:
o The division issues a citation: “If the division issues a citation, the employee may not commence an action…” (Cal. Labor Code § 2699.3(b)(2)(A)(i)).
o The division fails to issue a citation: “If by the end of the period for inspection or investigation provided for in Section 6317, the division fails to issue a citation and the aggrieved employee disputes that decision, the employee may challenge that decision in the superior court . . .” (Cal. Labor Code § 2699.3(b)(2)(A)(ii))
o Plaintiff’s position: “If the division fails to inspect or investigate the alleged violation as provided by Section 6309, the provisions of subdivision (c) shall apply to the determination of the alleged violation.” (Cal. Labor Code § 2699.3(b)(2)(B))
o Defendant’s Position: “Nothing in this subdivision shall be construed to authorize an employee to file a notice or to commence a civil action pursuant to Section 2699 during the period that an employer has voluntarily entered into consultation with the division to ameliorate a condition in that particular worksite.” (Cal. Labor Code § 2699.3(b)(3)(B).
Defendant argues that because DOSH inspected 14 campuses, Plaintiff is precluded from pursuing his action as to those 14 campuses—i.e., that Defendant has already entered into an agreement with the employer to abate the violation or ameliorate the condition in question, so section 2699.3(b)(3)(B) applies to preclude Plaintiff’s PAGA claims regarding those 14 campuses.
Plaintiff, on the other hand, argues that DIR did not follow the procedures of section 6309 because DIR did not investigate within 14 days and did not issue a citation arising out of the investigation within “six months after the occurrence of the violation.” (Cal. Labor Code § 6317—i.e., the six-month “statute of limitations” for Cal-OSHA to issue a citation after a violation). Accordingly, the default exhaustion procedures of subdivision (c) apply—i.e., Defendant had 33 calendar days to: (1) cure the alleged violations voluntarily; and (2) provide notice to Plaintiff by certified mail that the violations had been cured, “including a description of actions taken” to effectuate the cure. (Labor Code § 2699.3(c)(2)(A).) Because Defendant failed to take either of these steps, Plaintiff is permitted to pursue a civil penalty. (See Cal. Labor Code § 2699.3(c)(2)(A) [“If the alleged violation is not cured within the 33-day period, the employee may commence a civil action pursuant to Section 2699.”]
Further, Plaintiff argues that the scope of DIR’s investigation is unclear and/or deficient in addressing all of the violations that Plaintiff alleged in the notice. For example, in Plaintiff’s PAGA notice, Plaintiff alleged the following asbestos-related incident at CSU’s Channel Islands campus: “The most recent incident at the California State University Channel Islands (“CSUCI”) was from March 18th through March 25th of 2017 when, during a remodel at Arroyo Hall, it came to light that CSUCI trades personnel may have been exposed to Asbestos Containing Materials (‘ACM’). Work was stopped only after all demolition had been completed and new installations had taken place.” (Socks Decl. at ¶ 6, Ex. C, p. 27.) DIR’s May 28, 2019, letter claims to have investigated this incident. (Reynolds Decl. at Ex. 1, p. 3, ¶ 12, and p. 6, ¶ 12.). According to Plaintiff, DIR investigators declined to investigate this incident because it was time-barred from taking action. In support of this argument, Plaintiff offers an e-mail from DIR that states, in relevant part, “Due to the statute of limitations of 6 months, the incident at Arroyo Hall could not be addressed.” Additionally, as Defendants also notes, the DIR letter states “items in your complaint that were not addressed, where [sic] either not within the Division jurisdiction [possibly due to statute of limitations issues?] and/or the information provided was too vague to determine whether a workplace hazard existed.”
What Defendant ignores, however, is that this is not a dispositive motion. Defendant is asking that the court rule, as a matter of law, that the DIR/DOSH letter dispositively establishes that each violation for which Plaintiff gave PAGA notice was sufficiently investigated, that there is a consultation between Defendant and the division related to each violation, and that the Labor Code absolutely precludes Plaintiff’s pursuing an action on those violations. As the court previously ruled, however, Defendant has already raised this issue twice, and twice the court found that Defendant did not sufficiently provide an identifiable connection between Plaintiff’s PAGA notice and Cal-OSHA/DIR/DOSH’s investigations. Indeed, as Plaintiff’s argument about the “active investigation file” versus the DIR letter regarding the reason why the Arroyo Hall incident was not investigated shows, discovery may lead to the other facts or evidence that may discredit the DIR letter, that may reveal what actual violations in the PAGA notice were investigated, and that the investigation was sufficient or insufficient under the Labor Code. The scope of discovery is broad—discovery is permissible if “it possibly assists the party in evaluating the case, preparing for trial, or aiding in settlement of the case.” The information that Plaintiff seeks would assist Plaintiff in evaluating the extent of the violations that Plaintiff pursue and the scope of Plaintiff’s PAGA claim.
The court, therefore, overrules Defendant’s objections relating to the 7-campus limitation and orders Defendant to serve further responses that withdraws those objections, and provide the information/documents that Defendant has been withholding based on those objections.
III. Burdensome ESI Objection
If a party asserts a “burdensome” objection, that party bears the burden of “showing the quantum of work required” to respond to discovery and articulate that burden that is being imposed on that party. West Pico Furniture Co. v. Los Angeles v. Superior Court (1961) 56 Cal. 2d 407, 417-418.
To establish this burden, Defendant offers the following declaration of burden:
There is no CSU system-wide policy regarding the tools to run e-discovery searches. While some campuses may utilize the same applications or software, there is no universal process or procedure, so the ESI searches must be tailored to each campus’ limitations.
- Relevant to Plaintiff’s request for production of communications (emails), five of the seven campuses have the tools to run word searches across a group of users at the same time; but two campuses do not and would have to run searches user-by-user.
- One of the seven campuses does not have the tools to run Boolean connector searches.
- Of the six campuses that do have the tools to run Boolean connector searches, there are significant differences between the campuses’ abilities:
o Not all campuses can run 86 searches simultaneously.
o Even if a campus has the tools to run 86 searches simultaneously, the amount of estimated effort ranges from 40 hours to 250 hours, with setting up the searches and downloading the results taking the most time.
o For the campus that does not have the tools to run the Boolean connector searches, the campus IT professional estimates it would take 3200 hours to run equivalent searches.
o Not all campuses have the tools to search email attachments – and even then, the software utilized does not permit searching non-OCRed attachments or encrypted files.
o Not all campuses have forensic container software, which means the “last modified” date of an electronic record will not be preserved. Three of the seven campuses do not have the tools to run word searches across non-email files and documents.
- The search tools to run searches across non-email files and documents differ based on the location where the files and documents are housed – e.g., local hard drive versus Sharepoint versus Box, etc. Four out of the seven campuses do not have the tools to run Boolean searches of non-email files and documents.
- Campuses that do have the tools to run Boolean searches of non-email files and documents estimate it would take 70-80 hours to run the searches, but for the campuses that do not have the tools, it is expected to be a months-long process.
Additionally, Defendant also attaches declarations by information technology professionals at the seven CSU campuses that Defendant was producing information for to further substantiate these claims. Defendant claims to produce such ESI would take months.
As part of the meet/confer process, given this burden, Defendant asked Plaintiff to narrow Plaintiff’s 86 proposed search terms or phrases. Further, if Plaintiff were to agree to parameters such as a date range and a list of specific custodians, an outside vendor can process the ESI search at an approximate cost of $35/GB. But Plaintiff has not agreed to any type of cost-sharing agreement.
In response, rather than address this burden (or any alternative to narrowing down this burden/expense), Plaintiff attacks the basis of Defendant’s declaration and argues that Defendant should offer even more testimony regarding exactly how the electronic system of every campus works, why one would take “x hours and another take “y” hours, etc. The court finds that Defendant’s declaration of burden is sufficient to justify Defendant’s burdensome/expense objection. The court, therefore, sustains that objection.
The court, however, must view and liberally construe discovery. Thus, while Defendant has shown the burden and expense of producing these documents, to the extent Plaintiff still wants this information, the court is inclined to order that Defendant produce these documents, but only if Plaintiff bears Defendant’s expenses to do so. To the extent that some documents/review would be too expensive for Plaintiff, Plaintiff can decide for himself to narrow the scope of search terms and/or what documents Defendant should produce.
IV. Defendant’s Remaining Objections
On a motion to compel, the responding party has the burden of establishing a valid objection, including any claim of privilege. (Coy v. Superior Court (1962) 58 Cal.2d 210, 220.) Here, other than the two objections the court discusses above, Defendant has not addressed any of Defendant’s other objections. Indeed, Defendant fails to file an opposition separate statement, detailing Defendant’s position on each response to each request for production/interrogatory. To the extent that Defendant asserts any other objections than the ones noted above, those objections are overruled.
V. Defendant’s Responses
Because Defendant has served supplemental responses since Plaintiff filed the motions and because the court’s ruling on this motion will require Defendant to serve further, supplemental responses, the issue of whether or not Defendant’s initial substantive responses are compliant is moot. The court admonishes Defendants, particularly for responses to requests for production, that any further, supplemental response should comply with the representations/statements that the Discovery Act requires.
The court finds that both parties have unnecessarily stalled discovery. As for Defendant, the court finds that Defendant’s failure to provide any substantive responses at all to Plaintiff’s second motion to be a failure to meaningfully meet/confer. Further, Defendant’s continued 7-campus limitation objection, despite the court’s prior rulings on the issue is unwarranted. As for Plaintiff, Plaintiff’s failure to attempt to narrow the scope of discovery, including the burden/expense objection, is a failure to meaningfully meet/confer. The parties’ tactics have caused discovery to still not be resolved after over one year. Because the court attributes fault to both parties, the court declines imposing sanctions. The court, however, admonishes the parties, that the court may be inclined to impose sanctions against both parties in the future if these extensive discovery disputes continue.
Case Number: BC705095 Hearing Date: February 18, 2020 Dept: 73
Rafael Ongkeko, Judge presiding
JOSEPH SHEPLER VS BOARD OF TRUSTEES OF THE CALIFORNIA STATE UNIVERSITY (BC705095)
Counsel for Plaintiff/opposing party: Rosen, etc. (Ryan Saba; Tyler Vanderpool); Collier, etc. (Dustin Collier; V. Joshua Socks)
Counsel for Defendant/moving party: Evans, etc. (Elizabeth McNulty; Christine Reynoldls)
MOTION TO STRIKE PUNITIVE DAMAGES ALLEGATIONS FROM THE SECOND AMENDED COMPLAINT (filed 10/18/19)
Defendant Board of Trustees of the California State University’s motion to strike punitive damage allegations from Plaintiff Joseph Shepler’s Second Amended Complaint is GRANTED. Gov. Code §818; Visalia Unified School Dist. v. Sup.Ct. (2019) 43 Cal.App.5th 563 (remittitur expected to issue 2/18/20, construing Education Code § 44114(c)). Even assuming, arguendo, that “person” or “him or her” in the section applies to the Trustees, Gov. Code § 8547.8(c) has nearly identical language to that construed by the court in Visalia. In light of the unavailability of punitive damages against the Trustees, the court need not rule on the sufficiency of the factual allegations for punitive damages.
Defendant raised the Visalia case in its reply. If Plaintiff requests additional time to brief the issue in Visalia or obtain a full and complete legislative history of the cited whistleblowing statutes, the parties may address that issue at the hearing.
Unless waived, notice of ruling by moving party.