Preview
1 ROB BONTA 3/26/2024
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”), Cynthia Daley, and Debra Larson
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 SEPARATE
17 STATEMENT IN SUPPORT OF
MOTION TO COMPEL RESPONSES TO
18 TRUSTEES OF THE CALIFORNIA REQUESTS FOR PRODUCTION OF
STATE UNIVERSITY, STATE OF DOCUMENTS, SETS TWO AND THREE,
19 CALIFORNIA, AND CYNTHIA DALEY, AND MOTION FOR SANCTIONS
AN INDIVIDUAL, AND DEBRA LARSON,
20 AN INDIVIDUAL,, Date: April 24, 2024
Time: 9:00 am
21 Defendant. Dept: 6
Judge: The Honorable Stephen E.
22 Benson
Trial Date:
23 Action Filed: April 24, 2019
24 Pursuant to California Rules of Court, Rule 3.1345, Defendant Board of Trustees of the
25 California State University, at the California State University, Chico campus (the “CSU”),
26 provides the following Separate Statement in Support of Motion to Compel Responses to
27 Requests for Production of Documents and Motion for Sanctions.
28
1
Defendant’s Separate Statement in Support of Motion to Compel Responses to Request for Production of Documents
and Motion for Sanctions (19CV01226)
1 As set forth below, the CSU seeks to compel further responses to inadequate responses to
2 the CSU’s Requests for Production of Documents, Set Two, requests 103, 105, and 107 (Exh. H).
3 Additionally, Randolph failed to respond whatsoever to the CSU’s Requests for Production of
4 Documents, Set Three. 1 Because California Rules of Court, Rule 3.1345, subdivision (b)
5 provides that a separate statement is not required where a party provides “no response” to a
6 request for discovery, the CSU’s Requests for Production of Documents, Set Three is not
7 included in this Separate Statement.
8 REQUEST NO. 103:
9 All witness statements, affidavits, or declarations obtained by YOU from any current or
10 former student of defendant CSU regarding the allegations in the Third Amended Complaint
11 and/or this ACTION.
12 RESPONSE TO REQUEST NO. 103:
13 All responsive documents in Plaintiff’s possession will be produced.
14 REASONS FURTHER RESPONSE TO REQUEST NO. 103 IS NECESSARY:
15 The Information Sought is Directly Relevant and Material. This request seeks witness
16 statements from material witnesses in this case. Such statements are likely to determine whether
17 any additional witnesses need to be subpoenaed and deposed and could be used to impeach
18 witnesses at trial.
19 Plaintiff Did Not Verify Her Response. Responses to discovery must be accompanied by
20 a verification under oath by the responding party. (Code Civ. Proc., §§ 2015.5, 2031.250; see
21 also Code Civ. Proc., §§ 2030.250 [interrogatories] and 2033.240 [requests for admissions].) The
22 Code of Civil Procedure expressly provides that the verification must include the following: (1) a
23 certification under penalty of perjury that the responses are true; (2) an affirmation that the
24 responses are so certified under the laws of the State of California; and (3) the place of execution.
25 (Code Civ. Proc., § 2015.5, emphasis added.) The Code then provides that the certification be
26
27 1
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.
2
Defendant’s Separate Statement in Support of Motion to Compel Responses to Request for Production of Documents
and Motion for Sanctions (19CV01226)
1 “substantially the following form: . . . ‘I certify (or declare) under penalty of perjury that the
2 foregoing is true and correct.’” (Ibid.)
3 Randolph’s verifications include none of the above required elements, including the
4 required oath under penalty of perjury. Instead, they merely state: “Verified as true and correct.”
5 Her “verification” thus does not comply with the Code of Civil Procedure. Randolph was
6 notified in the December 28, 2023 and February 12, 2024 letters that her responses lacked proper
7 verifications and thus did not comply with California law, but she never cured that defect and has
8 never provided any justification for refusing to do so. (Deschler Decl., ¶¶ 6, 9, Exhs. L, O.)
9 Unsworn responses are tantamount to no responses at all. (Appleton v. Sup. Ct. (1988) 206
10 Cal.App.3d 632, 635-36 [directing trial court to impose sanctions for failure to provide complete,
11 verified discovery responses] [citing Zorro Inv. Co. v. Great Pacific Securities Corp. (1977) 69
12 Cal.App.3d 907, 914].) Consequently, Randolph’s failure to properly verify her responses to
13 discovery renders the responses themselves nonexistent and subjects her to mandatory sanctions.
14 Plaintiff’s Response is Inadequate. Despite that Randolph stated she would comply and
15 produce all responsive documents, over three months after providing her unverified responses,
16 Randolph still has not produced any responsive documents and has provided no explanation for
17 her failure to comply. (Deschler Decl., ⁋ 9.) A motion to compel is warranted where a party
18 represents that he or she will comply with an inspection/production demand, but then fails to
19 comply. (Code Civ. Proc., § 3031.320.) Therefore, Randolph should be ordered to produce all
20 responsive documents.
21 REQUEST NO. 105:
22 All DOCUMENTS relating to any nonprivileged COMMUNICATION between YOU and
23 any person regarding the allegations in the Third Amended Complaint and/or this ACTION.
24 RESPONSE TO REQUEST NO. 105:
25 Other than what has already been provided, Plaintiff does not have any responsive
26 documents in her possession, custody or control. Also note that Plaintiff had copies of these
27 documents on her CSU Chico computer hard drive that Defendants destroyed, in violation of her
28 attorney’s litigation hold letter and state law requiring the preservation of evidence. Her hard
3
Defendant’s Separate Statement in Support of Motion to Compel Responses to Request for Production of Documents
and Motion for Sanctions (19CV01226)
1 drive included nonprivileged COMMUNICATION between YOU and any person regarding the
2 allegations in the Third Amended Complaint and/or this ACTION.
3 REASONS FURTHER RESPONSE TO REQUEST NO. 105 IS NECESSARY:
4 The Information Sought is Directly Relevant and Material. This request seeks
5 communications with potential material witnesses in this case. Such communications are likely
6 to determine whether any additional witnesses need to be subpoenaed and deposed and could be
7 used to impeach Randolph and/or witnesses at trial.
8 Plaintiff Waived All Objections By Failing to Timely Respond. Failure to timely
9 respond to an inspection demand waives all objections, including claims of privilege and work
10 product. (Code Civ. Proc., § 2031.300, subd. (a).) California Courts have long upheld such
11 waivers where a party fails to timely respond. (See, e.g., Leach v. Sup. Ct. (1980) 111
12 Cal.App.3d 902, 905 [The courts’ “long standing interpretation” of the Code is that “a party’s
13 failure to object to the interrogatories within 30 days, or such additional time as extended by the
14 court, constitutes a waiver of any right to object.”].)
15 The deadline for CSU’s Request for Production of Documents, Set Two, was November 20,
16 2023. Randolph did not provide responses and had not requested an extension of time when the
17 deadline came. Rather, on December 11, 2023, three weeks after the responses were due,
18 Randolph finally provided her responses. (Deschler Decl., ¶ 5.)
19 Plaintiff Did Not Verify Her Response. Responses to discovery must be accompanied by
20 a verification under oath by the responding party. (Code Civ. Proc., §§ 2015.5, 2031.250; see
21 also Code Civ. Proc., §§ 2030.250 [interrogatories] and 2033.240 [requests for admissions].) The
22 Code of Civil Procedure expressly provides that the verification must include the following: (1) a
23 certification under penalty of perjury that the responses are true; (2) an affirmation that the
24 responses are so certified under the laws of the State of California; and (3) the place of execution.
25 (Code Civ. Proc., § 2015.5, emphasis added.) The Code then provides that the certification be
26 “substantially the following form: . . . ‘I certify (or declare) under penalty of perjury that the
27 foregoing is true and correct.’” (Ibid.)
28
4
Defendant’s Separate Statement in Support of Motion to Compel Responses to Request for Production of Documents
and Motion for Sanctions (19CV01226)
1 Randolph’s verifications include none of the above required elements, including the
2 required oath under penalty of perjury. Instead, they merely state: “Verified as true and correct.”
3 Her “verification” thus does not comply with the Code of Civil Procedure. Randolph was
4 notified in the December 28, 2023 and February 12, 2024 letters that her responses lacked proper
5 verifications and thus did not comply with California law, but she never cured that defect and has
6 never provided any justification for refusing to do so. (Deschler Decl., ¶¶ 6, 9, Exhs. L, O.)
7 Unsworn responses are tantamount to no responses at all. (Appleton v. Sup. Ct. (1988) 206
8 Cal.App.3d 632, 635-36 [directing trial court to impose sanctions for failure to provide complete,
9 verified discovery responses] [citing Zorro Inv. Co. v. Great Pacific Securities Corp. (1977) 69
10 Cal.App.3d 907, 914].) Consequently, Randolph’s failure to properly verify her responses to
11 discovery renders the responses themselves nonexistent and subjects her to mandatory sanctions.
12 Plaintiff’s Response is Inadequate. With regard to Randolph’s response to request for
13 production 105, it appears that Randolph intends to state that she is unable to comply with the
14 request. However, Randolph then provides additional nonresponsive information that
15 significantly confuses the issue and makes it unclear whether she cannot comply or refuses to
16 comply, in that she states: “Also note that Plaintiff had copies of these documents on her CSU
17 Chico computer hard drive that Defendants destroyed, in violation of her attorney’s litigation hold
18 letter and state law requirement the preservation of evidence. Her hard drive included
19 nonprivileged COMMUNICATION between YOU and any person regarding the allegations in
20 the Third Amended Complaint and/or this ACTION.” (Exh. H, at p. 2, ll. 19-24.) This
21 additional information is nonresponsive, is incoherent and does not make sense, and thus obscures
22 whether or not Randolph can or will comply. Therefore, the CSU cannot rely on Randolph’s
23 response through trial to know whether or not responsive documents exist. Only the following
24 are permitted in response to requests for production: (1) a statement that the party will comply;
25 (2) a representation that the party lacks the ability to comply; and/or (3) an objection. (Code Civ.
26 Proc., § 2031.210, subd. (a).) Responses that are evasive are grounds for sanctions. (Scheiding v.
27 Dinwiddie Const. Co. (1999) 69 Cal.App.4th 64, 76 [internal quotes omitted]; see Code Civ.
28 Proc., § 2023.010, subd. (f).) Where the question is specific and explicit, it is improper to provide
5
Defendant’s Separate Statement in Support of Motion to Compel Responses to Request for Production of Documents
and Motion for Sanctions (19CV01226)
1 “deftly worded conclusionary answers designed to evade a series of explicit questions.” (Deyo v.
2 Kilbourne (1978) 84 Cal.App.3d 771, 783.) Because Randolph’s response does not comply with
3 the Code of Civil Procedure, she should be ordered to provide a compliant response.
4 REQUEST NO. 107:
5 All DOCUMENTS IDENTIFIED by YOU in response to Defendant’s special interrogatory
6 no. 24.
7 RESPONSE TO REQUEST NO. 107:
8 This is a duplicate request. As stated in my response to defendant’s special interrogatories,
9 nearly all of the documents that I transferred to Cheri Chastain were, apparently, destroyed by
10 Defendants, as 1) they were part of my CSU Chico hard drive that was destroyed, and 2) we have
11 been informed, via interrogatory response from Defendant that they do not possess Ms.
12 Chastain’s box folder, or the transfer box folder that I used to transfer the documents to Ms.
13 Chastain. This, despite the fact that my attorney sent a litigation hold letter to Defendants in
14 March 2019 demanding that thy retain all documents in their original format. Defendants did not
15 comply with the litigation hold letter or state law in preserving evidence. There were 11,000 plus
16 documents that I transferred to Ms. Chastain. I do not have any documents in my possession
17 other than what Defendants have provided and what I have already provided to the defendants.
18 From the documents that Defendants have produced – Exhibit E, pages 40-398 identifies a
19 portion of the documents that I transferred to Ms. Chastain, with additional files that were stored
20 on my hard drive, which was destroyed.
21 REASONS FURTHER RESPONSE TO REQUEST NO. 107 IS NECESSARY:
22 The Information Sought is Directly Relevant and Material. S
23 Plaintiff Waived All Objections By Failing to Timely Respond. Failure to timely
24 respond to an inspection demand waives all objections, including claims of privilege and work
25 product. (Code Civ. Proc., § 2031.300, subd. (a).) California Courts have long upheld such
26 waivers where a party fails to timely respond. (See, e.g., Leach v. Sup. Ct. (1980) 111
27 Cal.App.3d 902, 905 [The courts’ “long standing interpretation” of the Code is that “a party’s
28
6
Defendant’s Separate Statement in Support of Motion to Compel Responses to Request for Production of Documents
and Motion for Sanctions (19CV01226)
1 failure to object to the interrogatories within 30 days, or such additional time as extended by the
2 court, constitutes a waiver of any right to object.”].)
3 The deadline for CSU’s Request for Production of Documents, Set Two, was November 20,
4 2023. Randolph did not provide responses and had not requested an extension of time when the
5 deadline came. Rather, on December 11, 2023, three weeks after the responses were due,
6 Randolph finally provided her responses. (Deschler Decl., ¶ 5.)
7 Plaintiff Did Not Verify Her Response. Responses to discovery must be accompanied by
8 a verification under oath by the responding party. (Code Civ. Proc., §§ 2015.5, 2031.250; see
9 also Code Civ. Proc., §§ 2030.250 [interrogatories] and 2033.240 [requests for admissions].) The
10 Code of Civil Procedure expressly provides that the verification must include the following: (1) a
11 certification under penalty of perjury that the responses are true; (2) an affirmation that the
12 responses are so certified under the laws of the State of California; and (3) the place of execution.
13 (Code Civ. Proc., § 2015.5, emphasis added.) The Code then provides that the certification be
14 “substantially the following form: . . . ‘I certify (or declare) under penalty of perjury that the
15 foregoing is true and correct.’” (Ibid.)
16 Randolph’s verifications include none of the above required elements, including the
17 required oath under penalty of perjury. Instead, they merely state: “Verified as true and correct.”
18 Her “verification” thus does not comply with the Code of Civil Procedure. Randolph was
19 notified in the December 28, 2023 and February 12, 2024 letters that her responses lacked proper
20 verifications and thus did not comply with California law, but she never cured that defect and has
21 never provided any justification for refusing to do so. (Deschler Decl., ¶¶ 6, 9, Exhs. L, O.)
22 Unsworn responses are tantamount to no responses at all. (Appleton v. Sup. Ct. (1988) 206
23 Cal.App.3d 632, 635-36 [directing trial court to impose sanctions for failure to provide complete,
24 verified discovery responses] [citing Zorro Inv. Co. v. Great Pacific Securities Corp. (1977) 69
25 Cal.App.3d 907, 914].) Consequently, Randolph’s failure to properly verify her responses to
26 discovery renders the responses themselves nonexistent and subjects her to mandatory sanctions.
27 Plaintiff’s Response is Inadequate. With regard to Randolph’s response to request for
28 production 107, Randolph erroneously states, “[t]his is a duplicate request,” without stating which
7
Defendant’s Separate Statement in Support of Motion to Compel Responses to Request for Production of Documents
and Motion for Sanctions (19CV01226)
1 request(s) she contends are duplicative, and then provides an additional twelve lines of
2 nonresponsive information without ever stating whether she will comply with the request, cannot
3 comply, or has a valid objection, as the Code of Civil Procedure requires. Although Randolph’s
4 response is lengthy, it is not clear whether she is intending to object, to comply, or to state an
5 inability to comply. Therefore, the CSU cannot rely on Randolph’s response through trial to
6 know whether or not responsive documents exist. Only the following are permitted in response to
7 requests for production: (1) a statement that the party will comply; (2) a representation that the
8 party lacks the ability to comply; and/or (3) an objection. (Code Civ. Proc., § 2031.210, subd.
9 (a).) Responses that are evasive are grounds for sanctions. (Scheiding v. Dinwiddie Const. Co.
10 (1999) 69 Cal.App.4th 64, 76 [internal quotes omitted]; see Code Civ. Proc., § 2023.010, subd.
11 (f).) Where the question is specific and explicit, it is improper to provide “deftly worded
12 conclusionary answers designed to evade a series of explicit questions.” (Deyo v. Kilbourne
13 (1978) 84 Cal.App.3d 771, 783.) Because Randolph’s response is evasive and similarly fails to
14 comply with the Code of Civil Procedure, she should be ordered to provide a compliant response.
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”), Cynthia Daley, and Debra
24 Larson
25 SA2019102196
37950268.docx
26
27
28
8
Defendant’s Separate Statement 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 SEPARATE STATEMENT IN
SUPPORT OF MOTION TO COMPEL RESPONSES TO REQUESTS FOR
PRODUCTION OF DOCUMENTS, SET 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
1 ROB BONTA 3/26/2024 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”), Cynthia Daley, and Debra Larson 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 SEPARATE 17 STATEMENT IN SUPPORT OF MOTION TO COMPEL RESPONSES TO 18 TRUSTEES OF THE CALIFORNIA REQUESTS FOR PRODUCTION OF STATE UNIVERSITY, STATE OF DOCUMENTS, SETS TWO AND THREE, 19 CALIFORNIA, AND CYNTHIA DALEY, AND MOTION FOR SANCTIONS AN INDIVIDUAL, AND DEBRA LARSON, 20 AN INDIVIDUAL,, Date: April 24, 2024 Time: 9:00 am 21 Defendant. Dept: 6 Judge: The Honorable Stephen E. 22 Benson Trial Date: 23 Action Filed: April 24, 2019 24 Pursuant to California Rules of Court, Rule 3.1345, Defendant Board of Trustees of the 25 California State University, at the California State University, Chico campus (the “CSU”), 26 provides the following Separate Statement in Support of Motion to Compel Responses to 27 Requests for Production of Documents and Motion for Sanctions. 28 1 Defendant’s Separate Statement in Support of Motion to Compel Responses to Request for Production of Documents and Motion for Sanctions (19CV01226) 1 As set forth below, the CSU seeks to compel further responses to inadequate responses to 2 the CSU’s Requests for Production of Documents, Set Two, requests 103, 105, and 107 (Exh. H). 3 Additionally, Randolph failed to respond whatsoever to the CSU’s Requests for Production of 4 Documents, Set Three. 1 Because California Rules of Court, Rule 3.1345, subdivision (b) 5 provides that a separate statement is not required where a party provides “no response” to a 6 request for discovery, the CSU’s Requests for Production of Documents, Set Three is not 7 included in this Separate Statement. 8 REQUEST NO. 103: 9 All witness statements, affidavits, or declarations obtained by YOU from any current or 10 former student of defendant CSU regarding the allegations in the Third Amended Complaint 11 and/or this ACTION. 12 RESPONSE TO REQUEST NO. 103: 13 All responsive documents in Plaintiff’s possession will be produced. 14 REASONS FURTHER RESPONSE TO REQUEST NO. 103 IS NECESSARY: 15 The Information Sought is Directly Relevant and Material. This request seeks witness 16 statements from material witnesses in this case. Such statements are likely to determine whether 17 any additional witnesses need to be subpoenaed and deposed and could be used to impeach 18 witnesses at trial. 19 Plaintiff Did Not Verify Her Response. Responses to discovery must be accompanied by 20 a verification under oath by the responding party. (Code Civ. Proc., §§ 2015.5, 2031.250; see 21 also Code Civ. Proc., §§ 2030.250 [interrogatories] and 2033.240 [requests for admissions].) The 22 Code of Civil Procedure expressly provides that the verification must include the following: (1) a 23 certification under penalty of perjury that the responses are true; (2) an affirmation that the 24 responses are so certified under the laws of the State of California; and (3) the place of execution. 25 (Code Civ. Proc., § 2015.5, emphasis added.) The Code then provides that the certification be 26 27 1 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. 2 Defendant’s Separate Statement in Support of Motion to Compel Responses to Request for Production of Documents and Motion for Sanctions (19CV01226) 1 “substantially the following form: . . . ‘I certify (or declare) under penalty of perjury that the 2 foregoing is true and correct.’” (Ibid.) 3 Randolph’s verifications include none of the above required elements, including the 4 required oath under penalty of perjury. Instead, they merely state: “Verified as true and correct.” 5 Her “verification” thus does not comply with the Code of Civil Procedure. Randolph was 6 notified in the December 28, 2023 and February 12, 2024 letters that her responses lacked proper 7 verifications and thus did not comply with California law, but she never cured that defect and has 8 never provided any justification for refusing to do so. (Deschler Decl., ¶¶ 6, 9, Exhs. L, O.) 9 Unsworn responses are tantamount to no responses at all. (Appleton v. Sup. Ct. (1988) 206 10 Cal.App.3d 632, 635-36 [directing trial court to impose sanctions for failure to provide complete, 11 verified discovery responses] [citing Zorro Inv. Co. v. Great Pacific Securities Corp. (1977) 69 12 Cal.App.3d 907, 914].) Consequently, Randolph’s failure to properly verify her responses to 13 discovery renders the responses themselves nonexistent and subjects her to mandatory sanctions. 14 Plaintiff’s Response is Inadequate. Despite that Randolph stated she would comply and 15 produce all responsive documents, over three months after providing her unverified responses, 16 Randolph still has not produced any responsive documents and has provided no explanation for 17 her failure to comply. (Deschler Decl., ⁋ 9.) A motion to compel is warranted where a party 18 represents that he or she will comply with an inspection/production demand, but then fails to 19 comply. (Code Civ. Proc., § 3031.320.) Therefore, Randolph should be ordered to produce all 20 responsive documents. 21 REQUEST NO. 105: 22 All DOCUMENTS relating to any nonprivileged COMMUNICATION between YOU and 23 any person regarding the allegations in the Third Amended Complaint and/or this ACTION. 24 RESPONSE TO REQUEST NO. 105: 25 Other than what has already been provided, Plaintiff does not have any responsive 26 documents in her possession, custody or control. Also note that Plaintiff had copies of these 27 documents on her CSU Chico computer hard drive that Defendants destroyed, in violation of her 28 attorney’s litigation hold letter and state law requiring the preservation of evidence. Her hard 3 Defendant’s Separate Statement in Support of Motion to Compel Responses to Request for Production of Documents and Motion for Sanctions (19CV01226) 1 drive included nonprivileged COMMUNICATION between YOU and any person regarding the 2 allegations in the Third Amended Complaint and/or this ACTION. 3 REASONS FURTHER RESPONSE TO REQUEST NO. 105 IS NECESSARY: 4 The Information Sought is Directly Relevant and Material. This request seeks 5 communications with potential material witnesses in this case. Such communications are likely 6 to determine whether any additional witnesses need to be subpoenaed and deposed and could be 7 used to impeach Randolph and/or witnesses at trial. 8 Plaintiff Waived All Objections By Failing to Timely Respond. Failure to timely 9 respond to an inspection demand waives all objections, including claims of privilege and work 10 product. (Code Civ. Proc., § 2031.300, subd. (a).) California Courts have long upheld such 11 waivers where a party fails to timely respond. (See, e.g., Leach v. Sup. Ct. (1980) 111 12 Cal.App.3d 902, 905 [The courts’ “long standing interpretation” of the Code is that “a party’s 13 failure to object to the interrogatories within 30 days, or such additional time as extended by the 14 court, constitutes a waiver of any right to object.”].) 15 The deadline for CSU’s Request for Production of Documents, Set Two, was November 20, 16 2023. Randolph did not provide responses and had not requested an extension of time when the 17 deadline came. Rather, on December 11, 2023, three weeks after the responses were due, 18 Randolph finally provided her responses. (Deschler Decl., ¶ 5.) 19 Plaintiff Did Not Verify Her Response. Responses to discovery must be accompanied by 20 a verification under oath by the responding party. (Code Civ. Proc., §§ 2015.5, 2031.250; see 21 also Code Civ. Proc., §§ 2030.250 [interrogatories] and 2033.240 [requests for admissions].) The 22 Code of Civil Procedure expressly provides that the verification must include the following: (1) a 23 certification under penalty of perjury that the responses are true; (2) an affirmation that the 24 responses are so certified under the laws of the State of California; and (3) the place of execution. 25 (Code Civ. Proc., § 2015.5, emphasis added.) The Code then provides that the certification be 26 “substantially the following form: . . . ‘I certify (or declare) under penalty of perjury that the 27 foregoing is true and correct.’” (Ibid.) 28 4 Defendant’s Separate Statement in Support of Motion to Compel Responses to Request for Production of Documents and Motion for Sanctions (19CV01226) 1 Randolph’s verifications include none of the above required elements, including the 2 required oath under penalty of perjury. Instead, they merely state: “Verified as true and correct.” 3 Her “verification” thus does not comply with the Code of Civil Procedure. Randolph was 4 notified in the December 28, 2023 and February 12, 2024 letters that her responses lacked proper 5 verifications and thus did not comply with California law, but she never cured that defect and has 6 never provided any justification for refusing to do so. (Deschler Decl., ¶¶ 6, 9, Exhs. L, O.) 7 Unsworn responses are tantamount to no responses at all. (Appleton v. Sup. Ct. (1988) 206 8 Cal.App.3d 632, 635-36 [directing trial court to impose sanctions for failure to provide complete, 9 verified discovery responses] [citing Zorro Inv. Co. v. Great Pacific Securities Corp. (1977) 69 10 Cal.App.3d 907, 914].) Consequently, Randolph’s failure to properly verify her responses to 11 discovery renders the responses themselves nonexistent and subjects her to mandatory sanctions. 12 Plaintiff’s Response is Inadequate. With regard to Randolph’s response to request for 13 production 105, it appears that Randolph intends to state that she is unable to comply with the 14 request. However, Randolph then provides additional nonresponsive information that 15 significantly confuses the issue and makes it unclear whether she cannot comply or refuses to 16 comply, in that she states: “Also note that Plaintiff had copies of these documents on her CSU 17 Chico computer hard drive that Defendants destroyed, in violation of her attorney’s litigation hold 18 letter and state law requirement the preservation of evidence. Her hard drive included 19 nonprivileged COMMUNICATION between YOU and any person regarding the allegations in 20 the Third Amended Complaint and/or this ACTION.” (Exh. H, at p. 2, ll. 19-24.) This 21 additional information is nonresponsive, is incoherent and does not make sense, and thus obscures 22 whether or not Randolph can or will comply. Therefore, the CSU cannot rely on Randolph’s 23 response through trial to know whether or not responsive documents exist. Only the following 24 are permitted in response to requests for production: (1) a statement that the party will comply; 25 (2) a representation that the party lacks the ability to comply; and/or (3) an objection. (Code Civ. 26 Proc., § 2031.210, subd. (a).) Responses that are evasive are grounds for sanctions. (Scheiding v. 27 Dinwiddie Const. Co. (1999) 69 Cal.App.4th 64, 76 [internal quotes omitted]; see Code Civ. 28 Proc., § 2023.010, subd. (f).) Where the question is specific and explicit, it is improper to provide 5 Defendant’s Separate Statement in Support of Motion to Compel Responses to Request for Production of Documents and Motion for Sanctions (19CV01226) 1 “deftly worded conclusionary answers designed to evade a series of explicit questions.” (Deyo v. 2 Kilbourne (1978) 84 Cal.App.3d 771, 783.) Because Randolph’s response does not comply with 3 the Code of Civil Procedure, she should be ordered to provide a compliant response. 4 REQUEST NO. 107: 5 All DOCUMENTS IDENTIFIED by YOU in response to Defendant’s special interrogatory 6 no. 24. 7 RESPONSE TO REQUEST NO. 107: 8 This is a duplicate request. As stated in my response to defendant’s special interrogatories, 9 nearly all of the documents that I transferred to Cheri Chastain were, apparently, destroyed by 10 Defendants, as 1) they were part of my CSU Chico hard drive that was destroyed, and 2) we have 11 been informed, via interrogatory response from Defendant that they do not possess Ms. 12 Chastain’s box folder, or the transfer box folder that I used to transfer the documents to Ms. 13 Chastain. This, despite the fact that my attorney sent a litigation hold letter to Defendants in 14 March 2019 demanding that thy retain all documents in their original format. Defendants did not 15 comply with the litigation hold letter or state law in preserving evidence. There were 11,000 plus 16 documents that I transferred to Ms. Chastain. I do not have any documents in my possession 17 other than what Defendants have provided and what I have already provided to the defendants. 18 From the documents that Defendants have produced – Exhibit E, pages 40-398 identifies a 19 portion of the documents that I transferred to Ms. Chastain, with additional files that were stored 20 on my hard drive, which was destroyed. 21 REASONS FURTHER RESPONSE TO REQUEST NO. 107 IS NECESSARY: 22 The Information Sought is Directly Relevant and Material. S 23 Plaintiff Waived All Objections By Failing to Timely Respond. Failure to timely 24 respond to an inspection demand waives all objections, including claims of privilege and work 25 product. (Code Civ. Proc., § 2031.300, subd. (a).) California Courts have long upheld such 26 waivers where a party fails to timely respond. (See, e.g., Leach v. Sup. Ct. (1980) 111 27 Cal.App.3d 902, 905 [The courts’ “long standing interpretation” of the Code is that “a party’s 28 6 Defendant’s Separate Statement in Support of Motion to Compel Responses to Request for Production of Documents and Motion for Sanctions (19CV01226) 1 failure to object to the interrogatories within 30 days, or such additional time as extended by the 2 court, constitutes a waiver of any right to object.”].) 3 The deadline for CSU’s Request for Production of Documents, Set Two, was November 20, 4 2023. Randolph did not provide responses and had not requested an extension of time when the 5 deadline came. Rather, on December 11, 2023, three weeks after the responses were due, 6 Randolph finally provided her responses. (Deschler Decl., ¶ 5.) 7 Plaintiff Did Not Verify Her Response. Responses to discovery must be accompanied by 8 a verification under oath by the responding party. (Code Civ. Proc., §§ 2015.5, 2031.250; see 9 also Code Civ. Proc., §§ 2030.250 [interrogatories] and 2033.240 [requests for admissions].) The 10 Code of Civil Procedure expressly provides that the verification must include the following: (1) a 11 certification under penalty of perjury that the responses are true; (2) an affirmation that the 12 responses are so certified under the laws of the State of California; and (3) the place of execution. 13 (Code Civ. Proc., § 2015.5, emphasis added.) The Code then provides that the certification be 14 “substantially the following form: . . . ‘I certify (or declare) under penalty of perjury that the 15 foregoing is true and correct.’” (Ibid.) 16 Randolph’s verifications include none of the above required elements, including the 17 required oath under penalty of perjury. Instead, they merely state: “Verified as true and correct.” 18 Her “verification” thus does not comply with the Code of Civil Procedure. Randolph was 19 notified in the December 28, 2023 and February 12, 2024 letters that her responses lacked proper 20 verifications and thus did not comply with California law, but she never cured that defect and has 21 never provided any justification for refusing to do so. (Deschler Decl., ¶¶ 6, 9, Exhs. L, O.) 22 Unsworn responses are tantamount to no responses at all. (Appleton v. Sup. Ct. (1988) 206 23 Cal.App.3d 632, 635-36 [directing trial court to impose sanctions for failure to provide complete, 24 verified discovery responses] [citing Zorro Inv. Co. v. Great Pacific Securities Corp. (1977) 69 25 Cal.App.3d 907, 914].) Consequently, Randolph’s failure to properly verify her responses to 26 discovery renders the responses themselves nonexistent and subjects her to mandatory sanctions. 27 Plaintiff’s Response is Inadequate. With regard to Randolph’s response to request for 28 production 107, Randolph erroneously states, “[t]his is a duplicate request,” without stating which 7 Defendant’s Separate Statement in Support of Motion to Compel Responses to Request for Production of Documents and Motion for Sanctions (19CV01226) 1 request(s) she contends are duplicative, and then provides an additional twelve lines of 2 nonresponsive information without ever stating whether she will comply with the request, cannot 3 comply, or has a valid objection, as the Code of Civil Procedure requires. Although Randolph’s 4 response is lengthy, it is not clear whether she is intending to object, to comply, or to state an 5 inability to comply. Therefore, the CSU cannot rely on Randolph’s response through trial to 6 know whether or not responsive documents exist. Only the following are permitted in response to 7 requests for production: (1) a statement that the party will comply; (2) a representation that the 8 party lacks the ability to comply; and/or (3) an objection. (Code Civ. Proc., § 2031.210, subd. 9 (a).) Responses that are evasive are grounds for sanctions. (Scheiding v. Dinwiddie Const. Co. 10 (1999) 69 Cal.App.4th 64, 76 [internal quotes omitted]; see Code Civ. Proc., § 2023.010, subd. 11 (f).) Where the question is specific and explicit, it is improper to provide “deftly worded 12 conclusionary answers designed to evade a series of explicit questions.” (Deyo v. Kilbourne 13 (1978) 84 Cal.App.3d 771, 783.) Because Randolph’s response is evasive and similarly fails to 14 comply with the Code of Civil Procedure, she should be ordered to provide a compliant response. 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”), Cynthia Daley, and Debra 24 Larson 25 SA2019102196 37950268.docx 26 27 28 8 Defendant’s Separate Statement 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 SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS, SET 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