Preview
3/26/2024
1 ROB BONTA
Attorney General of California
2 JERRY J. DESCHLER
Supervising Deputy Attorney General
3 State Bar No. 215691
1300 I Street, Suite 125
4 P.O. Box 944255
Sacramento, CA 94244-2550
5 Telephone: (916) 210-7871
Fax: (916) 324-5567
6 E-mail: Jerry.Deschler@doj.ca.gov
Attorneys for Defendants
7 Board of Trustees of the California State University,
which is the State of California acting in its higher
8 education capacity (erroneously sued as “Trustees
of the California State University, State of
9 California”) and Cynthia Daley
10 SUPERIOR COURT OF THE STATE OF CALIFORNIA
11 COUNTY OF BUTTE
12 CIVIL DIVISION
13
14
TERESA RANDOLPH, Case No. 19CV01226
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Plaintiff,
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v. DEFENDANT’S MEMORANDUM OF
17 POINTS AND AUTHORITIES IN
SUPPORT OF MOTION TO COMPEL
18 TRUSTEES OF THE CALIFORNIA RESPONSES TO REQUESTS FOR
STATE UNIVERSITY, STATE OF PRODUCTION OF DOCUMENTS, SETS
19 CALIFORNIA, AND CYNTHIA DALEY, TWO AND THREE, AND MOTION FOR
AN INDIVIDUAL, AND DEBRA LARSON, SANCTIONS
20 AN INDIVIDUAL,,
Date: April 24, 2024
21 Defendant. Time: 9:00 am
Dept: 6
22 Judge: The Honorable Stephen E.
Benson
23 Trial Date:
Action Filed: April 24, 2019
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Defendant’s Memorandum of Points and Authorities in Support of Motion to Compel Responses to Request for
Production of Documents and Motion For Sanctions (19CV01226)
1 INTRODUCTION
2 Defendant Board of Trustees of the California State University, at the California State
3 University, Chico campus (the “CSU”) seeks to compel Plaintiff Teresa Randolph’s (“Randolph”)
4 to provide proper responses to the CSU’s Requests for Production of Documents, Set Two,
5 requests 103, 105, and 107. (Exh. H.) Additionally, Randolph failed to respond whatsoever to
6 the CSU’s Requests for Production of Documents, Set Three, and should be compelled to
7 respond.
8 In addition to those responses not being adequate, Randolph has not provided proper
9 verifications under oath to any of her discovery responses.
10 As set forth more fully below, the CSU is entitled to complete, straightforward discovery
11 responses that comply with the Code of Civil Procedure, and is entitled to have those responses
12 verified under oath as required in order to avoid unfair surprise at trial. Because Randolph has
13 failed to comply or to provide any excuse for her noncompliance, the Court “shall” issue
14 monetary sanctions against Randolph and her counsel pursuant to Code of Civil Procedure section
15 2023.030, subdivision (a).
16 RELEVANT FACTUAL BACKGROUND
17 I. OVERVIEW OF LAWSUIT ALLEGATIONS AND RELEVANT PROCEDURAL HISTORY.
18 This is an employment lawsuit arising out of Randolph’s dismissal from her employment at
19 CSU Chico. After demurrers and motions for judgment on the pleadings, ten causes of action
20 from Randolph’s Third Amended Complaint are alleged against the CSU and individual
21 defendant Cynthia Daley: (1) discrimination based on disability under the Fair employment and
22 Housing Act (“FEHA”); (2) retaliation under the FEHA; (3) harassment under the FEHA; (4)
23 failure to prevent harassment and discrimination under the FEHA; (5) failure to provide
24 reasonable accommodation under the FEHA; (6) failure to engage in the interactive process under
25 the FEHA; (7) retaliation under Labor Code section 1102.5; (8) intentional infliction of emotional
26 distress; (9) retaliation under the California Family Rights Act; and (10) defamation. (Deschler
27 Decl., ¶ 2.)
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Defendant’s Memorandum of Points and Authorities in Support of Motion to Compel Responses to Request for
Production of Documents and Motion For Sanctions (19CV01226)
1 Trial was originally scheduled for December 6, 2021. On September 22, 2021, this Court
2 vacated the trial date on stipulation by the parties. (Deschler Decl., ¶ 2.) No new trial date has
3 been set. (Ibid.) Defendants are ready to proceed to trial whenever trial should be set. (Deschler
4 Decl., ¶ Ibid.)
5 II. RANDOLPH FAILED TO PROVIDE COMPLETE, VERIFIED RESPONSES TO DISCOVERY.
6 On October 18, 2023, defendant CSU propounded Special Interrogatories, Set Two, and
7 Requests for Production of Documents, Set Two to Randolph. (Deschler Decl., ¶ 3.)
8 On November 17, 2023, defendant CSU propounded the following: Requests for
9 Admissions, Set One; 1 Form Interrogatories—Employment Law, Set One (only interrogatory
10 217.1 was selected, which requests that Randolph state the factual basis for denying any of the
11 requests for admissions, and to identify all documents and witnesses supporting any of her
12 denials); Special Interrogatories, Set Three; and Requests for Production of Documents, Set
13 Three. (Deschler Decl., ¶ 4.)
14 Randolph served responses to Special Interrogatories, Set Two on November 17, 2020.
15 (Deschler Decl., ¶ 5.) She served responses to Requests for Admissions, Set One, Special
16 Interrogatories, Set Three, and Requests for Production of Documents, Set Two (late) on
17 December 11, 2023. (Ibid.) Randolph belatedly served responses to Form Interrogatories—
18 Employment Law, Set One on February 2, 2024. (Ibid.)
19 Randolph never provided responses to Requests for Production of Documents, Set Three.
20 (Deschler Decl., ¶ 5.) To date, Randolph has not provided responsive documents. (Ibid.)
21 Additionally, none of her responses included proper verifications. (Ibid.)
22 III. DEFENDANT MET AND CONFERRED, BUT RANDOLPH FAILED TO CURE THE
IDENTIFIED DEFECTS IN HER DISCOVERY RESPONSES.
23
Counsel for CSU sent a detailed meet and confer letter to Randolph’s counsel on December
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28, 2023. (Deschler Decl., ¶ 6, Exh. L.) The letter identified deficiencies in Randolph’s
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26 1
Randolph’s responses to Requests for Admissions are not presently at issue, other than
Randolph’s failure to provide a verification for her responses. However, several of the other
27 discovery requests are derivative of the Requests for Admissions, and seek information
supporting her denials. Additionally, the CSU reserves the right to later seek cost of proof
28 sanctions for any and all denials later established to be unsupported by the evidence.
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Defendant’s Memorandum of Points and Authorities in Support of Motion to Compel Responses to Request for
Production of Documents and Motion For Sanctions (19CV01226)
1 responses to the above discovery, requested that Randolph amend her responses and produce
2 responsive documents, and requested that Randolph provide proper verifications that comply with
3 California law. (Ibid.)
4 The parties exchanged several emails over the next few weeks in which Randolph’s counsel
5 expressed that he would see about amending the responses, and stated his desire to discuss the
6 responses via phone. He also requested extensions of time, which were granted. (Deschler Decl.,
7 ¶ 7, Exh. M.) On February 1, 2024, Randolph’s counsel stated in an email, “I think the call will
8 be most effective once documents are produced.” (Ibid.)
9 On February 2, 2024, Randolph served responses to the CSU’s Form Interrogatories—
10 Employment Law, and sent a response letter to the CSU’s initial meet and confer letter.
11 (Deschler Decl., ¶ 8, Exh. N.)
12 On February 12, 2024, counsel for CSU sent a further meet and confer letter, attempting
13 one last time to resolve the outstanding discovery issues, including the failure to respond to
14 Request for Production of Documents, Set Three, failure to produce any responsive documents as
15 promised, and failure to provide verifications for any of Randolph’s responses. (Deschler Decl., ¶
16 9, Exh. O.) Randolph’s counsel never responded. (Ibid.)
17 ARGUMENT
18 I. LEGAL STANDARD TO COMPEL FURTHER RESPONSES TO DEFENDANT’S REQUESTS
FOR PRODUCTION OF DOCUMENTS.
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The Code of Civil Procedure provides that each document request response must be timely,
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in the proper format, and under oath. (Code of Civ. Pro., §§ 2031.260, 2031.210, 2031.250.) A
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motion to compel lies where responses are inadequate. (Code Civ. Proc., § 2031.310, subd. (a).)
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Additionally, where a party responding to a request for production agrees to comply with
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demand, but then fails to do so, the Court may compel compliance. (Code of Civ. Proc., §
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2031.320.) There is no fixed time limit for such a motion, and no attempt to resolve informally
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need be shown. Rather, the moving party need only set forth the responding party’s failure to
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comply as agreed. (Code Civ. Pro., § 2031.320, subd. (a); see Standon Co., Inc. v. Sup. Ct. (Kim)
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(1990) 225 Cal.App.3d 898, 903.) As established in the accompanying Separate Statement of
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Defendant’s Memorandum of Points and Authorities in Support of Motion to Compel Responses to Request for
Production of Documents and Motion For Sanctions (19CV01226)
1 Discovery Items in Dispute (“Separate Statement”), Plaintiff’s responses to the CSU’s Requests
2 for Production of Documents are clearly deficient. The CSU’s arguments in support of an order
3 compelling the Plaintiff to produce requested documents are outlined below.
4 II. RANDOLPH WAIVED ALL OBJECTIONS BY FAILURE TO TIMELY RESPOND TO SETS
TWO AND THREE.
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Failure to timely respond to an inspection demand waives all objections, including claims
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of privilege and work product. (Code Civ. Proc., § 2031.300, subd. (a).) California Courts have
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long upheld such waivers where a party fails to timely respond. (See, e.g., Leach v. Sup. Ct.
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(1980) 111 Cal.App.3d 902, 905 [The courts’ “long standing interpretation” of the Code is that “a
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party’s failure to object to the interrogatories within 30 days, or such additional time as extended
10
by the court, constitutes a waiver of any right to object.”].)
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The deadline to respond to the CSU’s Request for Production of Documents, Set Two, was
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November 20, 2023. (Deschler Decl., ⁋ 3.) Randolph did not provide responses and had not
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requested an extension of time when the deadline came. (Deschler Decl., ⁋ 5.) Rather, on
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December 11, 2023, three weeks after the responses were due, Randolph finally provided her
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responses. (Ibid.) Additionally, Randolph has never responded to Request for Production of
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Documents, Set Three at all. (Ibid.)
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Because Randolph did not timely respond to the Department’s requests for production, she
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waived all objections as a matter of law. (Code Civ. Proc., § 2031.300, subd. (a).)
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III. RANDOLPH FAILED TO VERIFY HER RESPONSES AND REFUSES TO CURE THAT DEFECT.
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As a preliminary matter, Randolph failed to properly verify her responses to any of the
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discovery at issue.
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Responses to discovery must be accompanied by a verification under oath by the
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responding party. (Code Civ. Proc., §§ 2015.5, 2031.250; see also Code Civ. Proc., §§ 2030.250
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[interrogatories] and 2033.240 [requests for admissions].) The Code of Civil Procedure expressly
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provides that the verification must include the following: (1) a certification under penalty of
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perjury that the responses are true; (2) an affirmation that the responses are so certified under the
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laws of the State of California; and (3) the place of execution. (Code Civ. Proc., § 2015.5,
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Defendant’s Memorandum of Points and Authorities in Support of Motion to Compel Responses to Request for
Production of Documents and Motion For Sanctions (19CV01226)
1 emphasis added.) The Code then provides that the certification be “substantially the following
2 form: . . . ‘I certify (or declare) under penalty of perjury that the foregoing is true and correct.’”
3 (Ibid.)
4 Randolph’s responses include none of the above required elements, including the required
5 oath under penalty of perjury. Instead, they merely state: “Verified as true and correct.” Her
6 “verification” thus does not comply with the Code of Civil Procedure. Randolph was notified in
7 the December 28, 2023 and February 12, 2024 letters that her responses lacked proper
8 verifications and thus did not comply with California law, but she never cured that defect and has
9 never provided any justification for refusing to do so. (Deschler Decl., ¶¶ 5, 6, 9, Exhs. L, O.)
10 Unsworn responses are tantamount to no responses at all. (Appleton v. Sup. Ct. (1988) 206
11 Cal.App.3d 632, 635-36 [directing trial court to impose sanctions for failure to provide complete,
12 verified discovery responses] [citing Zorro Inv. Co. v. Great Pacific Securities Corp. (1977) 69
13 Cal.App.3d 907, 914].) Consequently, Randolph’s failure to properly verify her responses to
14 discovery renders the responses themselves nonexistent and subjects her to mandatory sanctions.
15 IV. RANDOLPH UNREASONABLY REFUSES TO PROVIDE DISCOVERABLE INFORMATION
16 The CSU propounded two sets of requests for production of documents. Randolph should
17 be compelled to provide further responses to Request for Production, Set Two, Nos. 103, 105,
18 107, and 117 because her untimely, unverified responses do not comply with the Code of Civil
19 Procedure. Additionally, Randolph should be compelled to provide responses to Request for
20 Production, Set Three because she failed to respond whatsoever.
21 A. Randolph’s Response to Request for Production of Documents, Set Two
are Inadequate.
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Randolph’s responses to requests for production 103, 105, 107, and 117 are evasive,
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inadequate, and do not comply with the Code of Civil Procedure. Additionally, with respect to
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request for production 103, Randolph stated she would produce all responsive documents, but has
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not done so.
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With respect to request for production 103, Randolph responded that “All responsive
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documents in Plaintiff’s possession will be produced.” (Exh. H, p. 2, ll. 1-4.) However, over
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Defendant’s Memorandum of Points and Authorities in Support of Motion to Compel Responses to Request for
Production of Documents and Motion For Sanctions (19CV01226)
1 three months after providing her unverified responses, Randolph still has not produced any
2 responsive documents and has provided no explanation for her failure to comply. (Deschler
3 Decl., ⁋ 9.) A motion to compel is warranted where a party represents that he or she will comply
4 with an inspection/production demand, but then fails to comply. (Code Civ. Proc., § 3031.320.)
5 Therefore, Randolph should be ordered to produce all responsive documents.
6 With regard to Randolph’s response to request for production 105, it appears that Randolph
7 intends to state that she is unable to comply with the request. However, Randolph then provides
8 additional nonresponsive information that significantly confuses the issue and makes it unclear
9 whether she cannot comply or refuses to comply, in that she states: “Also note that Plaintiff had
10 copies of these documents on her CSU Chico computer hard drive that Defendants destroyed, in
11 violation of her attorney’s litigation hold letter and state law requirement the preservation of
12 evidence. Her hard drive included nonprivileged COMMUNICATION between YOU and any
13 person regarding the allegations in the Third Amended Complaint and/or this ACTION.” (Exh.
14 H, at p. 2, ll. 19-24.) This additional information is nonresponsive, is incoherent and does not
15 make sense, and thus obscures whether or not Randolph can or will comply. Therefore, the CSU
16 cannot rely on Randolph’s response through trial to know whether or not responsive documents
17 exist. Only the following are permitted in response to requests for production: (1) a statement
18 that the party will comply; (2) a representation that the party lacks the ability to comply; and/or
19 (3) an objection. (Code Civ. Proc., § 2031.210, subd. (a).) Responses that are evasive are
20 grounds for sanctions. (Scheiding v. Dinwiddie Const. Co. (1999) 69 Cal.App.4th 64, 76 [internal
21 quotes omitted]; see Code Civ. Proc., § 2023.010, subd. (f).) Where the question is specific and
22 explicit, it is improper to provide “deftly worded conclusionary answers designed to evade a
23 series of explicit questions.” (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 783.) Because
24 Randolph’s response does not comply with the Code of Civil Procedure, she should be ordered to
25 provide a compliant response.
26 With regard to Randolph’s response to request for production 107, Randolph erroneously
27 states, “[t]his is a duplicate request,” without stating which request(s) she contends are
28 duplicative, and then provides an additional twelve lines of nonresponsive information without
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Defendant’s Memorandum of Points and Authorities in Support of Motion to Compel Responses to Request for
Production of Documents and Motion For Sanctions (19CV01226)
1 ever stating whether she will comply with the request, cannot comply, or has a valid objection, as
2 the Code of Civil Procedure requires. Because her response to this request is evasive and
3 similarly fails to comply with the Code of Civil Procedure, she should be ordered to provide a
4 compliant response.
5 B. Randolph Failed To Respond to Request for Production of Documents, Set Three.
6 Randolph failed to provide any objections or responses to the CSU’s Requests for
7 Production of Documents, Set Three, 2 which were due no later than December 15, 2023. Where
8 there has been no timely response to a section 2031.010 demand, an order compelling a response
9 is appropriate. (Code Civ. Proc., § 2031.300.) The failure to timely respond waives all
10 objections, including privilege and work product. (Code Civ. Proc., § 2031.300, subd. (a).) The
11 failure to respond also warrants sanctions against the party who failed to respond. (Code Civ.
12 Proc., § 2031.300, subd. (c).)
13 V. DEFENDANT IS ENTITLED TO MONETARY SANCTIONS
14 Where a motion to compel discovery is granted, the Court may impose monetary sanctions.
15 (Code Civ. Proc., § 2023.030, subd. (a).) Such sanctions “shall” be imposed unless the court
16 finds that a party made or opposed the motion “with substantial justification” or other
17 circumstances make the imposition of sanctions unjust. (Code Civ. Proc., § 2031.310, subd. (h),
18 2023.030, subd. (a); Kravitz v. Sup. Ct. (Milner) (2001) 91 Cal.App.4th 1015, 1021.) Moreover,
19 monetary sanctions are appropriate where responses contain “boilerplate” objections (objections
20 lacking in the specificity required by Code of Civil Procedure section 2030.240, subd. (b) even
21 without the necessity of a prior Court order. (See Korea Data Systems Co., Ltd. v. Sup. Ct.
22 (Amazing Technologies Corp.) (1997) 51 Cal.App.4th 1513, 1516.)
23 In the present case, monetary sanctions should be imposed against Plaintiff and her attorney
24 because they have no valid grounds upon which to oppose the CSU’s Motion, let alone
25 substantial justification that would make the imposition of sanctions unjust. The discovery
26 responses at issue are evasive and blatantly deficient. The CSU made attempts to resolve this
27 2
This set of requests for production consists of two requests, nos. 118 and 119, that seek
production of any and all documents supporting Randolph’s denial of requests for admissions and
28 interrogatories served therewith.
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Defendant’s Memorandum of Points and Authorities in Support of Motion to Compel Responses to Request for
Production of Documents and Motion For Sanctions (19CV01226)
1 needless discovery dispute, including granting extensions of time to respond to the CSU’s meet
2 and confer letters and to schedule telephone calls to resolve the dispute, but to no avail. The CSU
3 still does not have complete, unequivocal responses and does not believe it has all responsive
4 documents.
5 Accordingly, the CSU respectfully requests that this Court award monetary sanctions in the
6 amount of $3,465 for the reasonable attorneys fees and costs the Department has incurred to bring
7 this Motion. (Deschler Decl., ¶ 10.)
8 CONCLUSION
9 As set forth above, Randolph failed to provide complete, straightforward responses to the
10 CSU’s Requests for Production of Documents, Set Two, requests 103, 105, and 107.
11 Additionally, Randolph failed to respond whatsoever to the CSU’s Requests for Production of
12 Documents, Set Three.
13 She also failed to provide proper verifications for her discovery responses. Consequently,
14 the Court should grant the CSU’s motion to compel further responses.
15 Dated: March 26, 2024 Respectfully submitted,
16 ROB BONTA
Attorney General of California
17
18
19
JERRY J. DESCHLER
20 Supervising Deputy Attorney General
Attorneys for Defendants
21 Board of Trustees of the California State
University, which is the State of California
22 acting in its higher education capacity
(erroneously sued as “Trustees of the
23 California State University, State of
California”) and Cynthia Daley
24 SA2019102196
37947170.docx
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Defendant’s Memorandum of Points and Authorities in Support of Motion to Compel Responses to Request for
Production of Documents and Motion For Sanctions (19CV01226)
DECLARATION OF SERVICE BY E-MAIL
Case Name: Teresa Randolph v. Trustees of the California State University, et al.
No.: 19CV01226
I declare:
I am employed in the Office of the Attorney General, which is the office of a member of the
California State Bar, at which member's direction this service is made. I am 18 years of age or
older and not a party to this matter.
On March 26, 2024, I served the attached DEFENDANT'S MEMORANDUM OF POINTS
AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL RESPONSES TO
REQUESTS FOR PRODUCTION OF DOCUMENTS, SETS TWO AND THREE, AND
MOTION FOR SANCTIONS by transmitting a true copy via electronic mail addressed as
follows:
Thomas Dimitre
Thomas Dimitre Attorney at Law LLC
E-mail Address: dimitre@mind.net
I declare under penalty of perjury under the laws of the State of California and the United States
of America the foregoing is true and correct and that this declaration was executed on March 26,
2024, at Sacramento, California.
Christopher R. Irby S/ Christopher R. Irby
Declarant Signature
SA2019102196
37965075.docx
Preview
3/26/2024 1 ROB BONTA Attorney General of California 2 JERRY J. DESCHLER Supervising Deputy Attorney General 3 State Bar No. 215691 1300 I Street, Suite 125 4 P.O. Box 944255 Sacramento, CA 94244-2550 5 Telephone: (916) 210-7871 Fax: (916) 324-5567 6 E-mail: Jerry.Deschler@doj.ca.gov Attorneys for Defendants 7 Board of Trustees of the California State University, which is the State of California acting in its higher 8 education capacity (erroneously sued as “Trustees of the California State University, State of 9 California”) and Cynthia Daley 10 SUPERIOR COURT OF THE STATE OF CALIFORNIA 11 COUNTY OF BUTTE 12 CIVIL DIVISION 13 14 TERESA RANDOLPH, Case No. 19CV01226 15 Plaintiff, 16 v. DEFENDANT’S MEMORANDUM OF 17 POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL 18 TRUSTEES OF THE CALIFORNIA RESPONSES TO REQUESTS FOR STATE UNIVERSITY, STATE OF PRODUCTION OF DOCUMENTS, SETS 19 CALIFORNIA, AND CYNTHIA DALEY, TWO AND THREE, AND MOTION FOR AN INDIVIDUAL, AND DEBRA LARSON, SANCTIONS 20 AN INDIVIDUAL,, Date: April 24, 2024 21 Defendant. Time: 9:00 am Dept: 6 22 Judge: The Honorable Stephen E. Benson 23 Trial Date: Action Filed: April 24, 2019 24 25 26 27 28 1 Defendant’s Memorandum of Points and Authorities in Support of Motion to Compel Responses to Request for Production of Documents and Motion For Sanctions (19CV01226) 1 INTRODUCTION 2 Defendant Board of Trustees of the California State University, at the California State 3 University, Chico campus (the “CSU”) seeks to compel Plaintiff Teresa Randolph’s (“Randolph”) 4 to provide proper responses to the CSU’s Requests for Production of Documents, Set Two, 5 requests 103, 105, and 107. (Exh. H.) Additionally, Randolph failed to respond whatsoever to 6 the CSU’s Requests for Production of Documents, Set Three, and should be compelled to 7 respond. 8 In addition to those responses not being adequate, Randolph has not provided proper 9 verifications under oath to any of her discovery responses. 10 As set forth more fully below, the CSU is entitled to complete, straightforward discovery 11 responses that comply with the Code of Civil Procedure, and is entitled to have those responses 12 verified under oath as required in order to avoid unfair surprise at trial. Because Randolph has 13 failed to comply or to provide any excuse for her noncompliance, the Court “shall” issue 14 monetary sanctions against Randolph and her counsel pursuant to Code of Civil Procedure section 15 2023.030, subdivision (a). 16 RELEVANT FACTUAL BACKGROUND 17 I. OVERVIEW OF LAWSUIT ALLEGATIONS AND RELEVANT PROCEDURAL HISTORY. 18 This is an employment lawsuit arising out of Randolph’s dismissal from her employment at 19 CSU Chico. After demurrers and motions for judgment on the pleadings, ten causes of action 20 from Randolph’s Third Amended Complaint are alleged against the CSU and individual 21 defendant Cynthia Daley: (1) discrimination based on disability under the Fair employment and 22 Housing Act (“FEHA”); (2) retaliation under the FEHA; (3) harassment under the FEHA; (4) 23 failure to prevent harassment and discrimination under the FEHA; (5) failure to provide 24 reasonable accommodation under the FEHA; (6) failure to engage in the interactive process under 25 the FEHA; (7) retaliation under Labor Code section 1102.5; (8) intentional infliction of emotional 26 distress; (9) retaliation under the California Family Rights Act; and (10) defamation. (Deschler 27 Decl., ¶ 2.) 28 2 Defendant’s Memorandum of Points and Authorities in Support of Motion to Compel Responses to Request for Production of Documents and Motion For Sanctions (19CV01226) 1 Trial was originally scheduled for December 6, 2021. On September 22, 2021, this Court 2 vacated the trial date on stipulation by the parties. (Deschler Decl., ¶ 2.) No new trial date has 3 been set. (Ibid.) Defendants are ready to proceed to trial whenever trial should be set. (Deschler 4 Decl., ¶ Ibid.) 5 II. RANDOLPH FAILED TO PROVIDE COMPLETE, VERIFIED RESPONSES TO DISCOVERY. 6 On October 18, 2023, defendant CSU propounded Special Interrogatories, Set Two, and 7 Requests for Production of Documents, Set Two to Randolph. (Deschler Decl., ¶ 3.) 8 On November 17, 2023, defendant CSU propounded the following: Requests for 9 Admissions, Set One; 1 Form Interrogatories—Employment Law, Set One (only interrogatory 10 217.1 was selected, which requests that Randolph state the factual basis for denying any of the 11 requests for admissions, and to identify all documents and witnesses supporting any of her 12 denials); Special Interrogatories, Set Three; and Requests for Production of Documents, Set 13 Three. (Deschler Decl., ¶ 4.) 14 Randolph served responses to Special Interrogatories, Set Two on November 17, 2020. 15 (Deschler Decl., ¶ 5.) She served responses to Requests for Admissions, Set One, Special 16 Interrogatories, Set Three, and Requests for Production of Documents, Set Two (late) on 17 December 11, 2023. (Ibid.) Randolph belatedly served responses to Form Interrogatories— 18 Employment Law, Set One on February 2, 2024. (Ibid.) 19 Randolph never provided responses to Requests for Production of Documents, Set Three. 20 (Deschler Decl., ¶ 5.) To date, Randolph has not provided responsive documents. (Ibid.) 21 Additionally, none of her responses included proper verifications. (Ibid.) 22 III. DEFENDANT MET AND CONFERRED, BUT RANDOLPH FAILED TO CURE THE IDENTIFIED DEFECTS IN HER DISCOVERY RESPONSES. 23 Counsel for CSU sent a detailed meet and confer letter to Randolph’s counsel on December 24 28, 2023. (Deschler Decl., ¶ 6, Exh. L.) The letter identified deficiencies in Randolph’s 25 26 1 Randolph’s responses to Requests for Admissions are not presently at issue, other than Randolph’s failure to provide a verification for her responses. However, several of the other 27 discovery requests are derivative of the Requests for Admissions, and seek information supporting her denials. Additionally, the CSU reserves the right to later seek cost of proof 28 sanctions for any and all denials later established to be unsupported by the evidence. 3 Defendant’s Memorandum of Points and Authorities in Support of Motion to Compel Responses to Request for Production of Documents and Motion For Sanctions (19CV01226) 1 responses to the above discovery, requested that Randolph amend her responses and produce 2 responsive documents, and requested that Randolph provide proper verifications that comply with 3 California law. (Ibid.) 4 The parties exchanged several emails over the next few weeks in which Randolph’s counsel 5 expressed that he would see about amending the responses, and stated his desire to discuss the 6 responses via phone. He also requested extensions of time, which were granted. (Deschler Decl., 7 ¶ 7, Exh. M.) On February 1, 2024, Randolph’s counsel stated in an email, “I think the call will 8 be most effective once documents are produced.” (Ibid.) 9 On February 2, 2024, Randolph served responses to the CSU’s Form Interrogatories— 10 Employment Law, and sent a response letter to the CSU’s initial meet and confer letter. 11 (Deschler Decl., ¶ 8, Exh. N.) 12 On February 12, 2024, counsel for CSU sent a further meet and confer letter, attempting 13 one last time to resolve the outstanding discovery issues, including the failure to respond to 14 Request for Production of Documents, Set Three, failure to produce any responsive documents as 15 promised, and failure to provide verifications for any of Randolph’s responses. (Deschler Decl., ¶ 16 9, Exh. O.) Randolph’s counsel never responded. (Ibid.) 17 ARGUMENT 18 I. LEGAL STANDARD TO COMPEL FURTHER RESPONSES TO DEFENDANT’S REQUESTS FOR PRODUCTION OF DOCUMENTS. 19 The Code of Civil Procedure provides that each document request response must be timely, 20 in the proper format, and under oath. (Code of Civ. Pro., §§ 2031.260, 2031.210, 2031.250.) A 21 motion to compel lies where responses are inadequate. (Code Civ. Proc., § 2031.310, subd. (a).) 22 Additionally, where a party responding to a request for production agrees to comply with 23 demand, but then fails to do so, the Court may compel compliance. (Code of Civ. Proc., § 24 2031.320.) There is no fixed time limit for such a motion, and no attempt to resolve informally 25 need be shown. Rather, the moving party need only set forth the responding party’s failure to 26 comply as agreed. (Code Civ. Pro., § 2031.320, subd. (a); see Standon Co., Inc. v. Sup. Ct. (Kim) 27 (1990) 225 Cal.App.3d 898, 903.) As established in the accompanying Separate Statement of 28 4 Defendant’s Memorandum of Points and Authorities in Support of Motion to Compel Responses to Request for Production of Documents and Motion For Sanctions (19CV01226) 1 Discovery Items in Dispute (“Separate Statement”), Plaintiff’s responses to the CSU’s Requests 2 for Production of Documents are clearly deficient. The CSU’s arguments in support of an order 3 compelling the Plaintiff to produce requested documents are outlined below. 4 II. RANDOLPH WAIVED ALL OBJECTIONS BY FAILURE TO TIMELY RESPOND TO SETS TWO AND THREE. 5 Failure to timely respond to an inspection demand waives all objections, including claims 6 of privilege and work product. (Code Civ. Proc., § 2031.300, subd. (a).) California Courts have 7 long upheld such waivers where a party fails to timely respond. (See, e.g., Leach v. Sup. Ct. 8 (1980) 111 Cal.App.3d 902, 905 [The courts’ “long standing interpretation” of the Code is that “a 9 party’s failure to object to the interrogatories within 30 days, or such additional time as extended 10 by the court, constitutes a waiver of any right to object.”].) 11 The deadline to respond to the CSU’s Request for Production of Documents, Set Two, was 12 November 20, 2023. (Deschler Decl., ⁋ 3.) Randolph did not provide responses and had not 13 requested an extension of time when the deadline came. (Deschler Decl., ⁋ 5.) Rather, on 14 December 11, 2023, three weeks after the responses were due, Randolph finally provided her 15 responses. (Ibid.) Additionally, Randolph has never responded to Request for Production of 16 Documents, Set Three at all. (Ibid.) 17 Because Randolph did not timely respond to the Department’s requests for production, she 18 waived all objections as a matter of law. (Code Civ. Proc., § 2031.300, subd. (a).) 19 III. RANDOLPH FAILED TO VERIFY HER RESPONSES AND REFUSES TO CURE THAT DEFECT. 20 As a preliminary matter, Randolph failed to properly verify her responses to any of the 21 discovery at issue. 22 Responses to discovery must be accompanied by a verification under oath by the 23 responding party. (Code Civ. Proc., §§ 2015.5, 2031.250; see also Code Civ. Proc., §§ 2030.250 24 [interrogatories] and 2033.240 [requests for admissions].) The Code of Civil Procedure expressly 25 provides that the verification must include the following: (1) a certification under penalty of 26 perjury that the responses are true; (2) an affirmation that the responses are so certified under the 27 laws of the State of California; and (3) the place of execution. (Code Civ. Proc., § 2015.5, 28 5 Defendant’s Memorandum of Points and Authorities in Support of Motion to Compel Responses to Request for Production of Documents and Motion For Sanctions (19CV01226) 1 emphasis added.) The Code then provides that the certification be “substantially the following 2 form: . . . ‘I certify (or declare) under penalty of perjury that the foregoing is true and correct.’” 3 (Ibid.) 4 Randolph’s responses include none of the above required elements, including the required 5 oath under penalty of perjury. Instead, they merely state: “Verified as true and correct.” Her 6 “verification” thus does not comply with the Code of Civil Procedure. Randolph was notified in 7 the December 28, 2023 and February 12, 2024 letters that her responses lacked proper 8 verifications and thus did not comply with California law, but she never cured that defect and has 9 never provided any justification for refusing to do so. (Deschler Decl., ¶¶ 5, 6, 9, Exhs. L, O.) 10 Unsworn responses are tantamount to no responses at all. (Appleton v. Sup. Ct. (1988) 206 11 Cal.App.3d 632, 635-36 [directing trial court to impose sanctions for failure to provide complete, 12 verified discovery responses] [citing Zorro Inv. Co. v. Great Pacific Securities Corp. (1977) 69 13 Cal.App.3d 907, 914].) Consequently, Randolph’s failure to properly verify her responses to 14 discovery renders the responses themselves nonexistent and subjects her to mandatory sanctions. 15 IV. RANDOLPH UNREASONABLY REFUSES TO PROVIDE DISCOVERABLE INFORMATION 16 The CSU propounded two sets of requests for production of documents. Randolph should 17 be compelled to provide further responses to Request for Production, Set Two, Nos. 103, 105, 18 107, and 117 because her untimely, unverified responses do not comply with the Code of Civil 19 Procedure. Additionally, Randolph should be compelled to provide responses to Request for 20 Production, Set Three because she failed to respond whatsoever. 21 A. Randolph’s Response to Request for Production of Documents, Set Two are Inadequate. 22 Randolph’s responses to requests for production 103, 105, 107, and 117 are evasive, 23 inadequate, and do not comply with the Code of Civil Procedure. Additionally, with respect to 24 request for production 103, Randolph stated she would produce all responsive documents, but has 25 not done so. 26 With respect to request for production 103, Randolph responded that “All responsive 27 documents in Plaintiff’s possession will be produced.” (Exh. H, p. 2, ll. 1-4.) However, over 28 6 Defendant’s Memorandum of Points and Authorities in Support of Motion to Compel Responses to Request for Production of Documents and Motion For Sanctions (19CV01226) 1 three months after providing her unverified responses, Randolph still has not produced any 2 responsive documents and has provided no explanation for her failure to comply. (Deschler 3 Decl., ⁋ 9.) A motion to compel is warranted where a party represents that he or she will comply 4 with an inspection/production demand, but then fails to comply. (Code Civ. Proc., § 3031.320.) 5 Therefore, Randolph should be ordered to produce all responsive documents. 6 With regard to Randolph’s response to request for production 105, it appears that Randolph 7 intends to state that she is unable to comply with the request. However, Randolph then provides 8 additional nonresponsive information that significantly confuses the issue and makes it unclear 9 whether she cannot comply or refuses to comply, in that she states: “Also note that Plaintiff had 10 copies of these documents on her CSU Chico computer hard drive that Defendants destroyed, in 11 violation of her attorney’s litigation hold letter and state law requirement the preservation of 12 evidence. Her hard drive included nonprivileged COMMUNICATION between YOU and any 13 person regarding the allegations in the Third Amended Complaint and/or this ACTION.” (Exh. 14 H, at p. 2, ll. 19-24.) This additional information is nonresponsive, is incoherent and does not 15 make sense, and thus obscures whether or not Randolph can or will comply. Therefore, the CSU 16 cannot rely on Randolph’s response through trial to know whether or not responsive documents 17 exist. Only the following are permitted in response to requests for production: (1) a statement 18 that the party will comply; (2) a representation that the party lacks the ability to comply; and/or 19 (3) an objection. (Code Civ. Proc., § 2031.210, subd. (a).) Responses that are evasive are 20 grounds for sanctions. (Scheiding v. Dinwiddie Const. Co. (1999) 69 Cal.App.4th 64, 76 [internal 21 quotes omitted]; see Code Civ. Proc., § 2023.010, subd. (f).) Where the question is specific and 22 explicit, it is improper to provide “deftly worded conclusionary answers designed to evade a 23 series of explicit questions.” (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 783.) Because 24 Randolph’s response does not comply with the Code of Civil Procedure, she should be ordered to 25 provide a compliant response. 26 With regard to Randolph’s response to request for production 107, Randolph erroneously 27 states, “[t]his is a duplicate request,” without stating which request(s) she contends are 28 duplicative, and then provides an additional twelve lines of nonresponsive information without 7 Defendant’s Memorandum of Points and Authorities in Support of Motion to Compel Responses to Request for Production of Documents and Motion For Sanctions (19CV01226) 1 ever stating whether she will comply with the request, cannot comply, or has a valid objection, as 2 the Code of Civil Procedure requires. Because her response to this request is evasive and 3 similarly fails to comply with the Code of Civil Procedure, she should be ordered to provide a 4 compliant response. 5 B. Randolph Failed To Respond to Request for Production of Documents, Set Three. 6 Randolph failed to provide any objections or responses to the CSU’s Requests for 7 Production of Documents, Set Three, 2 which were due no later than December 15, 2023. Where 8 there has been no timely response to a section 2031.010 demand, an order compelling a response 9 is appropriate. (Code Civ. Proc., § 2031.300.) The failure to timely respond waives all 10 objections, including privilege and work product. (Code Civ. Proc., § 2031.300, subd. (a).) The 11 failure to respond also warrants sanctions against the party who failed to respond. (Code Civ. 12 Proc., § 2031.300, subd. (c).) 13 V. DEFENDANT IS ENTITLED TO MONETARY SANCTIONS 14 Where a motion to compel discovery is granted, the Court may impose monetary sanctions. 15 (Code Civ. Proc., § 2023.030, subd. (a).) Such sanctions “shall” be imposed unless the court 16 finds that a party made or opposed the motion “with substantial justification” or other 17 circumstances make the imposition of sanctions unjust. (Code Civ. Proc., § 2031.310, subd. (h), 18 2023.030, subd. (a); Kravitz v. Sup. Ct. (Milner) (2001) 91 Cal.App.4th 1015, 1021.) Moreover, 19 monetary sanctions are appropriate where responses contain “boilerplate” objections (objections 20 lacking in the specificity required by Code of Civil Procedure section 2030.240, subd. (b) even 21 without the necessity of a prior Court order. (See Korea Data Systems Co., Ltd. v. Sup. Ct. 22 (Amazing Technologies Corp.) (1997) 51 Cal.App.4th 1513, 1516.) 23 In the present case, monetary sanctions should be imposed against Plaintiff and her attorney 24 because they have no valid grounds upon which to oppose the CSU’s Motion, let alone 25 substantial justification that would make the imposition of sanctions unjust. The discovery 26 responses at issue are evasive and blatantly deficient. The CSU made attempts to resolve this 27 2 This set of requests for production consists of two requests, nos. 118 and 119, that seek production of any and all documents supporting Randolph’s denial of requests for admissions and 28 interrogatories served therewith. 8 Defendant’s Memorandum of Points and Authorities in Support of Motion to Compel Responses to Request for Production of Documents and Motion For Sanctions (19CV01226) 1 needless discovery dispute, including granting extensions of time to respond to the CSU’s meet 2 and confer letters and to schedule telephone calls to resolve the dispute, but to no avail. The CSU 3 still does not have complete, unequivocal responses and does not believe it has all responsive 4 documents. 5 Accordingly, the CSU respectfully requests that this Court award monetary sanctions in the 6 amount of $3,465 for the reasonable attorneys fees and costs the Department has incurred to bring 7 this Motion. (Deschler Decl., ¶ 10.) 8 CONCLUSION 9 As set forth above, Randolph failed to provide complete, straightforward responses to the 10 CSU’s Requests for Production of Documents, Set Two, requests 103, 105, and 107. 11 Additionally, Randolph failed to respond whatsoever to the CSU’s Requests for Production of 12 Documents, Set Three. 13 She also failed to provide proper verifications for her discovery responses. Consequently, 14 the Court should grant the CSU’s motion to compel further responses. 15 Dated: March 26, 2024 Respectfully submitted, 16 ROB BONTA Attorney General of California 17 18 19 JERRY J. DESCHLER 20 Supervising Deputy Attorney General Attorneys for Defendants 21 Board of Trustees of the California State University, which is the State of California 22 acting in its higher education capacity (erroneously sued as “Trustees of the 23 California State University, State of California”) and Cynthia Daley 24 SA2019102196 37947170.docx 25 26 27 28 9 Defendant’s Memorandum of Points and Authorities in Support of Motion to Compel Responses to Request for Production of Documents and Motion For Sanctions (19CV01226) DECLARATION OF SERVICE BY E-MAIL Case Name: Teresa Randolph v. Trustees of the California State University, et al. No.: 19CV01226 I declare: I am employed in the Office of the Attorney General, which is the office of a member of the California State Bar, at which member's direction this service is made. I am 18 years of age or older and not a party to this matter. On March 26, 2024, I served the attached DEFENDANT'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS, SETS TWO AND THREE, AND MOTION FOR SANCTIONS by transmitting a true copy via electronic mail addressed as follows: Thomas Dimitre Thomas Dimitre Attorney at Law LLC E-mail Address: dimitre@mind.net I declare under penalty of perjury under the laws of the State of California and the United States of America the foregoing is true and correct and that this declaration was executed on March 26, 2024, at Sacramento, California. Christopher R. Irby S/ Christopher R. Irby Declarant Signature SA2019102196 37965075.docx