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1 MATERN LAW GROUP, PC
MATTHEW J. MATERN (SBN 159798)
2 DEANNA S. LEIFER (SBN 265840)
OLIVIA GREEN (SBN 334128)
3 1230 Rosecrans Avenue, Suite 200
Manhattan Beach, CA 90266
4 Tel: (310) 531-1900
Facsimile: (310) 531-1901
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Attorneys for Plaintiff SANDRA GAETA
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7 SUPERIOR COURT OF THE STATE OF CALIFORNIA
8 FOR THE COUNTY OF KERN
9
10 SANDRA GAETA, an individual, CASE NO.: BCV-21-101362
11 [Assigned for all purposes to the
Plaintiff, Honorable Thomas S. Clark, Dept. 17]
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vs. PLAINTIFF SANDRA GAETA’S REPLY IN
13 SUPPORT OF MOTION TO COMPEL
JBBC, INC. D/B/A THE BROKEN YOLK DEFENDANT JBBC, INC. TO PROVIDE
14 CAFÉ, a California corporation; ABRAHAM FURTHER RESPONSES TO PLAINTIFF’S
AYALA, an individual; and DOES 1 through REQUESTS FOR PRODUCTION OF
15 50, inclusive, DOCUMENTS (SET ONE)
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Defendants. Date: March 8, 2022
17 Time: 8:30 a.m.
Dept.: 17
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19 Action Filed: June 15, 2021
Trial Date: September 26, 2022
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PLAINTIFF’S REPLY ISO MOTION TO COMPEL DEFENDANT TO PROVIDE FURTHER
RESPONSES TO PLAINTIFF’S REQUESTS FOR PRODUCTION
1 MEMORANDUM OF POINTS AND AUTHORITIES
2 I. INTRODUCTION
3 Prior to filing the instant motion to compel, plaintiff Sandra Gaeta (“Plaintiff”) and
4 defendant JBBC, Inc. (“Defendant”) engaged in extensive meet and confer efforts regarding
5 whether Plaintiff is entitled to “me-too” evidence, specifically, complaints of alleged sexual
6 harassment, sex discrimination, and retaliation by any employee of Defendant, other than Plaintiff,
7 at any of Defendant’s locations in California from January 1, 2018 to the present. Throughout these
8 meet and confer efforts, Defendant’s position was that allegations of sexual harassment, sex
9 discrimination, and retaliation that occurred after Plaintiff’s separation of employment from
10 Defendant were irrelevant.
11 Defendant now contends, for the first time, that the requests seeking “me too” evidence are
12 overbroad because they seek documents regarding employees that are not “similarly situated” to
13 Plaintiff. However, Defendant’s contention is entirely unsupported. In its opposition, Defendant
14 cites to a number of non-binding federal cases to support its arguments. Not only does Defendant
15 fail to provide any relevant California case law—which is quite clear that plaintiffs in sexual
16 harassment cases are entitled to “me-too” evidence of sexual harassment against other employees—
17 Defendant fails to point to a single case which imposes the “similarly situated” standard in a
18 factually similar circumstance. Thus, Defendant has failed to put forth any authority which negates
19 Plaintiff’s entitlement to the requested “me too” evidence.
20 As to Defendant’s contention that defendant Ayala’s bonuses and raises are private and
21 irrelevant, this information is directly related to Plaintiff’s claims for negligent hiring, retention,
22 and/or supervision, as well as Plaintiff’s claim for failure to prevent sexual harassment. Defendant’s
23 purported privacy concerns are easily remedied through the use of a protective order.
24 As Defendant has failed to provide sufficient evidence and arguments negating Plaintiff’s
25 entitlement to the requested documents, Plaintiff respectfully requests that the Court grant
26 Plaintiff’s motion to compel in its entirety.
27 ///
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PLAINTIFF’S REPLY ISO MOTION TO COMPEL DEFENDANT TO PROVIDE FURTHER
RESPONSES TO PLAINTIFF’S REQUESTS FOR PRODUCTION
1 II. ARGUMENT
2 A. Defendant’s “Similarly Situated” Standard Is Not Applicable to the Instant
3 Case and Does Not Negate Plaintiff’s Right to “Me Too” Evidence
4 Defendant’s argument that Requests for Production of Documents Nos. 27-30 are
5 overbroad because they seek information that includes individuals who are not similarly situated
6 to Plaintiff utterly fails. Defendant cites to McDonnell Douglas Corp. v. Green (1973) 411 U.S.
7 792, 804 to support its argument that, in order to obtain “me too” evidence, “Plaintiff must
8 establish that Defendant treated similarly situated employees outside of her protected category, in
9 similar circumstances, more favorably than her.” Opposition, p. 3, lines 13-17. However, not
10 only is McDonnell a non-binding federal case, it is both factually and procedurally distinct from
11 the instant case. Furthermore, McDonnell simply does not support the proposition for which
12 Defendant attempts to use it.
13 In McDonnell, the respondent was a black civil rights activist who was employed as a
14 mechanic and laboratory technician by the petitioner, an aerospace and aircraft manufacturer.
15 McDonnell, 411 U.S. 792 at 794. Approximately 8 years into the respondent’s employment, the
16 petitioner laid off the respondent, claiming a general reduction in workforce. Id. In protest of his
17 discharge, which the respondent claimed was racially motivated, he orchestrated illegal
18 demonstrations, including stalling cars on roads leading to the petitioner’s plant, and organizing a
19 “lock in” to prevent some of petitioner’s employees from leaving the plant. Id. at 794-795. When
20 the petitioner subsequently advertised for qualified mechanics, the respondent re-applied for his
21 job with petitioner, but was rejected. Id. at 796. The petitioner claimed that the rejection was
22 based on the respondent’s prior “stall in” and “lock in” demonstrations. Id. at 796-797.
23 The District Court found that the petitioner’s refusal to rehire the respondent was based on
24 the respondent’s participation in illegal demonstrations. McDonnell, 411 U.S. 792 at 794 at 797.
25 On appeal, the case was remanded as to the respondent’s claim that the petitioner refused to hire
26 him because of his race and civil rights activism. Id. at 797-798. The Supreme Court then granted
27 certiorari for the purpose of clarifying the standards governing an action challenging employment
28 discrimination. Id at 798. The Supreme Court concluded that, after a complainant in a Title VII
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PLAINTIFF’S REPLY ISO MOTION TO COMPEL DEFENDANT TO PROVIDE FURTHER
RESPONSES TO PLAINTIFF’S REQUESTS FOR PRODUCTION
1 trial establishes a prima facie case of racial discrimination, the burden shifts to the employer to
2 establish a legitimate nondiscriminatory reason for the adverse action. Id. at 802-803. The
3 Supreme Court then clarified that, on remand, the respondent must be afforded an opportunity to
4 show that petitioner's stated reason for its refusal to re-hire the respondent was pretext, and
5 “[e]specially relevant to such a showing would be evidence that white employees involved in acts
6 against petitioner of comparable seriousness to the ‘stall-in’ were nevertheless retained or
7 rehired.” Id. at 804.
8 Thus, McDonnell does not address or even relate to the issue of whether a plaintiff in a
9 sexual harassment case brought under the Fair Employment and House Act may obtain “me too”
10 evidence of other complaints of sexual harassment, sex discrimination, or retaliation by other
11 employees of the same defendant employer through discovery, nor does it support Defendant’s
12 proposition that Plaintiff must establish that Defendant treated similarly situated employees more
13 favorably. Instead, the precise questions at issue in McDonnell relate to “the proper order and
14 nature of proof” and the timing and “allocation of proof” at trialin discrimination actions under
15 Title VII of the Civil Rights Act of 1964. McDonnell, 411 U.S. 792, 793-794, 800-804.
16 Defendant’s use of McDonnell to support its argument that Plaintiff must show that
17 Defendant treated similarly situated employees outside of her protected category and in similar
18 circumstances more favorably than her is an improper attempt to mislead this Court into applying
19 a standard that simply does not apply under California law in these circumstances, and certainly
20 does not govern the determination of whether Plaintiff is entitled to the “me too” evidence sought
21 here. McDonnell is inapposite here and has no impact whatsoever on the determination as to
22 whether Plaintiff is entitled to “me too” evidence in discovery.
23 As a result, the remainder of Defendant’s analysis regarding what constitutes “similarly
24 situated” employees, and the cases to which Defendant cites to support its arguments for the
25 “similarly situated” standard and insistence on a narrow interpretation of “similarly situated” are
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PLAINTIFF’S REPLY ISO MOTION TO COMPEL DEFENDANT TO PROVIDE FURTHER
RESPONSES TO PLAINTIFF’S REQUESTS FOR PRODUCTION
1 absolutely irrelevant here1. Moreover, the federal cases on which Defendant relies are not binding
2 on this Court, and they largely relate to factually and procedurally distinguishable discrimination
3 cases and therefore are not instructive in this case.
4 In addition, Defendant cites to McCoy v. Pacific Martime Assn. (2013) 216 Cal.App.4th
5 283, 288-89 for the contention that “sexual harassment complaints involving non-party employees
6 are only relevant if the individuals held a job similar to Plaintiff (i.e., a non-supervisory associate)
7 and were harassed for the same reasons as Plaintiff or bore the same characteristics as Plaintiff.”
8 Opposition, p. 4, lines 26-28, p. 5, lines 1-2. However, McCoy does not stand for this proposition.
9 In another attempt to mislead this Court into applying inapplicable standards, Defendant
10 conveniently omits the necessary context and fails to explain that the court in McCoy excluded
11 “me too” evidence of other instances of sexual harassment and race discrimination because the
12 plaintiff’s sole remaining cause of action at trial was retaliation, and the court thought the evidence
13 of other instances of sexual harassment and discrimination would be prejudicial to the extent it
14 would confuse the jury regarding the sole remaining retaliation claim at issue. McCoy, 216
15 Cal.App.4th 283 at 296.
16 Here, Plaintiff has alleged sexual harassment, sex discrimination, and retaliation, among
17 other claims. Accordingly, Plaintiff’s requests for production of documents seeking documents
18 related to other complaints of sexual harassment, sex discrimination, and retaliation are proper.
19 As Defendant has failed to provide any relevant, binding authority negating Plaintiff’s ability to
20 obtain the requested “me too” evidence, the Court should grant Plaintiff’s motion to compel.
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24 1
For instance, Defendant cites to Guz v. Betchel Nat. Inc. (2000) 24 Cal.4th 317, 369; McGrory v.
25 Applied Signal Tech (2013) 212 Cal.App.4th 1510, 1536; Josephs v. Pac. Bell (9th Cir. 2006) 443
F.3d 1050, 1065, relying on Vasquez v. County of Los Angeles (9th Cir. 2004) 349 F.3d 634, 641;
26 Harris v. Winter (E.D. Cal. Sept. 28, 2007) 2007 WL 2900168, at *16, aff'd sub nom. Harris v.
Penn (9th Cir. 2009) 323 F. App'x 619; Guruwaya v. Montgomery Ward, Inc. (N.D. Cal. 1988)
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119 F.R.D. 36, 39; McKinney v. Am. Airlines (C.D. Cal. 2009) 641 F.Supp.2d 962, 974-75. See
28 Opposition, pp. 3-5.
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PLAINTIFF’S REPLY ISO MOTION TO COMPEL DEFENDANT TO PROVIDE FURTHER
RESPONSES TO PLAINTIFF’S REQUESTS FOR PRODUCTION
1 B. Defendant Fails to Provide Adequate Justification For Its Failure to Respond
2 to Request For Production of Documents No. 44
3 Defendant fails to provide adequate support for its contention that Plaintiff should not be
4 permitted to obtain documents evidencing defendant Ayala’s bonuses and raises during his
5 employment with Defendant. Instead, Defendant rests on its objections that the documents sought
6 are irrelevant and private. However, a party may obtain discovery regarding any matter, not
7 privileged, that is relevant to the subject matter involved. Code Civ. Proc. § 2017.010. Any
8 information that “might reasonably assist a party in evaluating the case, preparing for trial, or
9 facilitating settlement” falls within the definition of permissible discovery. Lipton v. Superior
10 Court (1996) 48 Cal.App.4th 1599, 1611.
11 Defendant fails to acknowledge the fact that documents evidencing defendant Ayala’s
12 bonuses and raises are directly related to Plaintiff’s allegations that Defendant failed to prevent
13 sexual harassment and discrimination and that Defendant was negligent in its hiring, retention
14 and/or supervision of defendant Ayala. These documents are also relevant to show whether
15 Defendant ratified defendant Ayala’s behavior. Defendant’s blanket assertion that the documents
16 sought are irrelevant does not overcome Plaintiff’s clear explanation as to the direct relevance of
17 the document request. As such, the Court should compel Defendant to produce responsive
18 documents.
19 C. Defendant’s Privacy Objection Should Not Prevent Plaintiff from Obtaining
20 the Relevant Documents Sought Through Requests For Production Nos. 27-30
21 and 44
22 Defendant argues that its privacy objections to Requests for Production of Documents Nos.
23 27-30 and 44 are proper, but fails to address the fact that its purported privacy concerns can be
24 alleviated by a protective order, which Plaintiff has already offered to enter into. Defendant bears
25 the burden of justifying its failure to respond to Requests for Production of Documents Nos. 27-30
26 and 44, and of justifying its privacy objections, and has failed to do so. See Coy v. Superior Court
27 (1962) 58 Cal.2d 210, 220-2. The “me too” evidence at issue is directly relevant, and
28 discoverable. See Johnson v. United Cerebral Palsy/Spastic Children's Foundation of Los
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PLAINTIFF’S REPLY ISO MOTION TO COMPEL DEFENDANT TO PROVIDE FURTHER
RESPONSES TO PLAINTIFF’S REQUESTS FOR PRODUCTION
1 Angeles and Ventura Counties (2009) 173 Cal.App.4th 740, 760. See also Beyda v. City of Los
2 Angeles (1998) 65 Cal.App.4th 511; Pantoja v. Anton (2011) 198 Cal.App.4th 87, 109-110. As
3 set forth above, the requested documents related to defendant Ayala’s bonuses and raises are also
4 relevant and discoverable. As such, Defendant must provide the requested documents.
5 D. Plaintiff Has Established Good Cause to Obtain the Requested Discovery
6 Despite Defendant’s contrary contentions regarding Pantoja and Johnson, neither Pantoja
7 nor Johnson contain any limitation whatsoever which would preclude Plaintiff from obtaining the
8 “me too” evidence sought as to other employees of Defendant during the relevant time period.
9 Further, both Pantoja and Johnson are instructive here. Pantoja stands for the proposition that
10 “me too” evidence, even if it occurred outside the plaintiff’s presence and at times other than when
11 plaintiff was employed, is both relevant and discoverable, and the failure to include such “me too”
12 evidence is prejudicial to the plaintiff. Pantoja, 198 Cal.App.4th at 92. Johnson supports the
13 proposition that “me too” evidence is admissible to show, among other things, discriminatory
14 animous. Johnson, 173 Cal.App.4th at 767.
15 Documents responsive to Requests for Production of Documents Nos. 27-30 will help
16 Plaintiff establish whether Defendant changed any of its policies or practices related to sexual
17 harassment, sex discrimination, and retaliation, and whether Defendant was negligent in its hiring,
18 retention, and/or supervision of defendant Ayala. Additionally, documents reflecting other
19 complaints of sexual harassment by Defendant’s employees will establish that Plaintiff was
20 subjected to a hostile work environment during her employment with Defendant, and that
21 Defendant failed to prevent or correct the sexual harassment.
22 Furthermore, documents responsive to Request for Production of Documents No. 44 will
23 allow Plaintiff to establish that Defendant failed to prevent sexual harassment and discrimination,
24 was negligent in its hiring, retention and/or supervision of defendant Ayala, and ratified defendant
25 Ayala’s behavior. Thus, Plaintiff has established good cause for the evidence sought.
26 In sum, Defendant failed to set forth any arguments which justify its refusal to provide
27 complete responses to the requests for production of documents at issue here. With respect to
28 Requests for Production of Documents Nos. 27-30, it is unclear what Defendant is even arguing.
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PLAINTIFF’S REPLY ISO MOTION TO COMPEL DEFENDANT TO PROVIDE FURTHER
RESPONSES TO PLAINTIFF’S REQUESTS FOR PRODUCTION
1 Defendant originally objected to the time period for which Plaintiff sought the “me too” evidence
2 (See Declaration of Olivia Green, ¶ 8, Exh. A), and Defendant now seemingly concedes that
3 Plaintiff is entitled to certain “me too” evidence, but asks the Court to apply a “similarly situated”
4 standard while providing no authority which would permit the Court to do so in this case. As set
5 forth above, Defendant’s arguments are irrelevant, Defendant’s cited case law is inapposite, and
6 Defendant’s objections do not justify its failure to provide complete responses. As to Request for
7 Production of Documents No. 44, Defendant rests on objections which simply do not justify its
8 failure to produce responsive documents.
9 Accordingly, Defendant must provide complete responses to Requests for Production of
10 Documents Nos. 27-30 and 44.
11 III. CONCLUSION
12 Based on the foregoing argument and authority, Plaintiff respectfully requests that the
13 Court grant Plaintiff’s Motion to Compel Defendant to Provide Further Responses to Plaintiff’s
14 Requests for Production of Documents Nos. 27, 28, 29, 30, and 44 (Set One) in its entirety.
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16 DATED: March 1, 2022 Respectfully submitted,
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MATERN LAW GROUP, PC
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20 By:
MATTHEW J. MATERN
21 DEANNA S. LEIFER
OLIVIA GREEN
22 Attorneys for Plaintiff SANDRA GAETA
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PLAINTIFF’S REPLY ISO MOTION TO COMPEL DEFENDANT TO PROVIDE FURTHER
RESPONSES TO PLAINTIFF’S REQUESTS FOR PRODUCTION
1 PROOF OF SERVICE
2 I am employed in the County of Los Angeles, State of California. I am over the age
of 18 years, and not a party to this action. My business address is 1230 Rosecrans Avenue,
3 Suite 200, Manhattan Beach, CA 90266
4 On March 1, 2022, I served the following document or documents:
5 PLAINTIFF SANDRA GAETA’S REPLY IN SUPPORT OF MOTION TO COMPEL
DEFENDANT JBBC, INC. TO PROVIDE FURTHER RESPONSES TO PLAINTIFF’S
6 REQUESTS FOR PRODUCTION OF DOCUMENTS (SET ONE)
7
By e-mail or electronic transmission. I caused the documents to be sent to the
8 person at the e-mail addresses listed below. I did not receive, within a reasonable
time after the transmission, any electronic message or other indication that the
9 transmission was unsuccessful.
10
Lyne A. Richardson, Esq. Attorneys for Defendant JBBC, INC.
11 Steven Mannix, Esq. DBA THE BROKEN YOLK CAFE
Carolina Martis
12 lyne.richardson@ogletree.com
steven.mannix@ogletree.com
13 carolina.martis@ogletreedeakins.com
OGLETREE, DEAKINS, NASH,
14 SMOAK & STEWART, P.C.
19191 S. Vermont Avenue, Suite 950
15 Torrance, CA 90502
Telephone: (310) 217-8191
16 Facsimile: (310) 217-8184
17
18 I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct. Executed on March 1, 2022 at Manhattan Beach, California.
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21 Christian Lopez
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PROOF OF SERVICE
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1 MATERN LAW GROUP, PC MATTHEW J. MATERN (SBN 159798) 2 DEANNA S. LEIFER (SBN 265840) OLIVIA GREEN (SBN 334128) 3 1230 Rosecrans Avenue, Suite 200 Manhattan Beach, CA 90266 4 Tel: (310) 531-1900 Facsimile: (310) 531-1901 5 Attorneys for Plaintiff SANDRA GAETA 6 7 SUPERIOR COURT OF THE STATE OF CALIFORNIA 8 FOR THE COUNTY OF KERN 9 10 SANDRA GAETA, an individual, CASE NO.: BCV-21-101362 11 [Assigned for all purposes to the Plaintiff, Honorable Thomas S. Clark, Dept. 17] 12 vs. PLAINTIFF SANDRA GAETA’S REPLY IN 13 SUPPORT OF MOTION TO COMPEL JBBC, INC. D/B/A THE BROKEN YOLK DEFENDANT JBBC, INC. TO PROVIDE 14 CAFÉ, a California corporation; ABRAHAM FURTHER RESPONSES TO PLAINTIFF’S AYALA, an individual; and DOES 1 through REQUESTS FOR PRODUCTION OF 15 50, inclusive, DOCUMENTS (SET ONE) 16 Defendants. Date: March 8, 2022 17 Time: 8:30 a.m. Dept.: 17 18 19 Action Filed: June 15, 2021 Trial Date: September 26, 2022 20 21 22 23 24 25 26 27 28 -1- PLAINTIFF’S REPLY ISO MOTION TO COMPEL DEFENDANT TO PROVIDE FURTHER RESPONSES TO PLAINTIFF’S REQUESTS FOR PRODUCTION 1 MEMORANDUM OF POINTS AND AUTHORITIES 2 I. INTRODUCTION 3 Prior to filing the instant motion to compel, plaintiff Sandra Gaeta (“Plaintiff”) and 4 defendant JBBC, Inc. (“Defendant”) engaged in extensive meet and confer efforts regarding 5 whether Plaintiff is entitled to “me-too” evidence, specifically, complaints of alleged sexual 6 harassment, sex discrimination, and retaliation by any employee of Defendant, other than Plaintiff, 7 at any of Defendant’s locations in California from January 1, 2018 to the present. Throughout these 8 meet and confer efforts, Defendant’s position was that allegations of sexual harassment, sex 9 discrimination, and retaliation that occurred after Plaintiff’s separation of employment from 10 Defendant were irrelevant. 11 Defendant now contends, for the first time, that the requests seeking “me too” evidence are 12 overbroad because they seek documents regarding employees that are not “similarly situated” to 13 Plaintiff. However, Defendant’s contention is entirely unsupported. In its opposition, Defendant 14 cites to a number of non-binding federal cases to support its arguments. Not only does Defendant 15 fail to provide any relevant California case law—which is quite clear that plaintiffs in sexual 16 harassment cases are entitled to “me-too” evidence of sexual harassment against other employees— 17 Defendant fails to point to a single case which imposes the “similarly situated” standard in a 18 factually similar circumstance. Thus, Defendant has failed to put forth any authority which negates 19 Plaintiff’s entitlement to the requested “me too” evidence. 20 As to Defendant’s contention that defendant Ayala’s bonuses and raises are private and 21 irrelevant, this information is directly related to Plaintiff’s claims for negligent hiring, retention, 22 and/or supervision, as well as Plaintiff’s claim for failure to prevent sexual harassment. Defendant’s 23 purported privacy concerns are easily remedied through the use of a protective order. 24 As Defendant has failed to provide sufficient evidence and arguments negating Plaintiff’s 25 entitlement to the requested documents, Plaintiff respectfully requests that the Court grant 26 Plaintiff’s motion to compel in its entirety. 27 /// 28 /// -2- PLAINTIFF’S REPLY ISO MOTION TO COMPEL DEFENDANT TO PROVIDE FURTHER RESPONSES TO PLAINTIFF’S REQUESTS FOR PRODUCTION 1 II. ARGUMENT 2 A. Defendant’s “Similarly Situated” Standard Is Not Applicable to the Instant 3 Case and Does Not Negate Plaintiff’s Right to “Me Too” Evidence 4 Defendant’s argument that Requests for Production of Documents Nos. 27-30 are 5 overbroad because they seek information that includes individuals who are not similarly situated 6 to Plaintiff utterly fails. Defendant cites to McDonnell Douglas Corp. v. Green (1973) 411 U.S. 7 792, 804 to support its argument that, in order to obtain “me too” evidence, “Plaintiff must 8 establish that Defendant treated similarly situated employees outside of her protected category, in 9 similar circumstances, more favorably than her.” Opposition, p. 3, lines 13-17. However, not 10 only is McDonnell a non-binding federal case, it is both factually and procedurally distinct from 11 the instant case. Furthermore, McDonnell simply does not support the proposition for which 12 Defendant attempts to use it. 13 In McDonnell, the respondent was a black civil rights activist who was employed as a 14 mechanic and laboratory technician by the petitioner, an aerospace and aircraft manufacturer. 15 McDonnell, 411 U.S. 792 at 794. Approximately 8 years into the respondent’s employment, the 16 petitioner laid off the respondent, claiming a general reduction in workforce. Id. In protest of his 17 discharge, which the respondent claimed was racially motivated, he orchestrated illegal 18 demonstrations, including stalling cars on roads leading to the petitioner’s plant, and organizing a 19 “lock in” to prevent some of petitioner’s employees from leaving the plant. Id. at 794-795. When 20 the petitioner subsequently advertised for qualified mechanics, the respondent re-applied for his 21 job with petitioner, but was rejected. Id. at 796. The petitioner claimed that the rejection was 22 based on the respondent’s prior “stall in” and “lock in” demonstrations. Id. at 796-797. 23 The District Court found that the petitioner’s refusal to rehire the respondent was based on 24 the respondent’s participation in illegal demonstrations. McDonnell, 411 U.S. 792 at 794 at 797. 25 On appeal, the case was remanded as to the respondent’s claim that the petitioner refused to hire 26 him because of his race and civil rights activism. Id. at 797-798. The Supreme Court then granted 27 certiorari for the purpose of clarifying the standards governing an action challenging employment 28 discrimination. Id at 798. The Supreme Court concluded that, after a complainant in a Title VII -3- PLAINTIFF’S REPLY ISO MOTION TO COMPEL DEFENDANT TO PROVIDE FURTHER RESPONSES TO PLAINTIFF’S REQUESTS FOR PRODUCTION 1 trial establishes a prima facie case of racial discrimination, the burden shifts to the employer to 2 establish a legitimate nondiscriminatory reason for the adverse action. Id. at 802-803. The 3 Supreme Court then clarified that, on remand, the respondent must be afforded an opportunity to 4 show that petitioner's stated reason for its refusal to re-hire the respondent was pretext, and 5 “[e]specially relevant to such a showing would be evidence that white employees involved in acts 6 against petitioner of comparable seriousness to the ‘stall-in’ were nevertheless retained or 7 rehired.” Id. at 804. 8 Thus, McDonnell does not address or even relate to the issue of whether a plaintiff in a 9 sexual harassment case brought under the Fair Employment and House Act may obtain “me too” 10 evidence of other complaints of sexual harassment, sex discrimination, or retaliation by other 11 employees of the same defendant employer through discovery, nor does it support Defendant’s 12 proposition that Plaintiff must establish that Defendant treated similarly situated employees more 13 favorably. Instead, the precise questions at issue in McDonnell relate to “the proper order and 14 nature of proof” and the timing and “allocation of proof” at trialin discrimination actions under 15 Title VII of the Civil Rights Act of 1964. McDonnell, 411 U.S. 792, 793-794, 800-804. 16 Defendant’s use of McDonnell to support its argument that Plaintiff must show that 17 Defendant treated similarly situated employees outside of her protected category and in similar 18 circumstances more favorably than her is an improper attempt to mislead this Court into applying 19 a standard that simply does not apply under California law in these circumstances, and certainly 20 does not govern the determination of whether Plaintiff is entitled to the “me too” evidence sought 21 here. McDonnell is inapposite here and has no impact whatsoever on the determination as to 22 whether Plaintiff is entitled to “me too” evidence in discovery. 23 As a result, the remainder of Defendant’s analysis regarding what constitutes “similarly 24 situated” employees, and the cases to which Defendant cites to support its arguments for the 25 “similarly situated” standard and insistence on a narrow interpretation of “similarly situated” are 26 /// /// 27 28 /// -4- PLAINTIFF’S REPLY ISO MOTION TO COMPEL DEFENDANT TO PROVIDE FURTHER RESPONSES TO PLAINTIFF’S REQUESTS FOR PRODUCTION 1 absolutely irrelevant here1. Moreover, the federal cases on which Defendant relies are not binding 2 on this Court, and they largely relate to factually and procedurally distinguishable discrimination 3 cases and therefore are not instructive in this case. 4 In addition, Defendant cites to McCoy v. Pacific Martime Assn. (2013) 216 Cal.App.4th 5 283, 288-89 for the contention that “sexual harassment complaints involving non-party employees 6 are only relevant if the individuals held a job similar to Plaintiff (i.e., a non-supervisory associate) 7 and were harassed for the same reasons as Plaintiff or bore the same characteristics as Plaintiff.” 8 Opposition, p. 4, lines 26-28, p. 5, lines 1-2. However, McCoy does not stand for this proposition. 9 In another attempt to mislead this Court into applying inapplicable standards, Defendant 10 conveniently omits the necessary context and fails to explain that the court in McCoy excluded 11 “me too” evidence of other instances of sexual harassment and race discrimination because the 12 plaintiff’s sole remaining cause of action at trial was retaliation, and the court thought the evidence 13 of other instances of sexual harassment and discrimination would be prejudicial to the extent it 14 would confuse the jury regarding the sole remaining retaliation claim at issue. McCoy, 216 15 Cal.App.4th 283 at 296. 16 Here, Plaintiff has alleged sexual harassment, sex discrimination, and retaliation, among 17 other claims. Accordingly, Plaintiff’s requests for production of documents seeking documents 18 related to other complaints of sexual harassment, sex discrimination, and retaliation are proper. 19 As Defendant has failed to provide any relevant, binding authority negating Plaintiff’s ability to 20 obtain the requested “me too” evidence, the Court should grant Plaintiff’s motion to compel. 21 /// 22 /// 23 /// 24 1 For instance, Defendant cites to Guz v. Betchel Nat. Inc. (2000) 24 Cal.4th 317, 369; McGrory v. 25 Applied Signal Tech (2013) 212 Cal.App.4th 1510, 1536; Josephs v. Pac. Bell (9th Cir. 2006) 443 F.3d 1050, 1065, relying on Vasquez v. County of Los Angeles (9th Cir. 2004) 349 F.3d 634, 641; 26 Harris v. Winter (E.D. Cal. Sept. 28, 2007) 2007 WL 2900168, at *16, aff'd sub nom. Harris v. Penn (9th Cir. 2009) 323 F. App'x 619; Guruwaya v. Montgomery Ward, Inc. (N.D. Cal. 1988) 27 119 F.R.D. 36, 39; McKinney v. Am. Airlines (C.D. Cal. 2009) 641 F.Supp.2d 962, 974-75. See 28 Opposition, pp. 3-5. -5- PLAINTIFF’S REPLY ISO MOTION TO COMPEL DEFENDANT TO PROVIDE FURTHER RESPONSES TO PLAINTIFF’S REQUESTS FOR PRODUCTION 1 B. Defendant Fails to Provide Adequate Justification For Its Failure to Respond 2 to Request For Production of Documents No. 44 3 Defendant fails to provide adequate support for its contention that Plaintiff should not be 4 permitted to obtain documents evidencing defendant Ayala’s bonuses and raises during his 5 employment with Defendant. Instead, Defendant rests on its objections that the documents sought 6 are irrelevant and private. However, a party may obtain discovery regarding any matter, not 7 privileged, that is relevant to the subject matter involved. Code Civ. Proc. § 2017.010. Any 8 information that “might reasonably assist a party in evaluating the case, preparing for trial, or 9 facilitating settlement” falls within the definition of permissible discovery. Lipton v. Superior 10 Court (1996) 48 Cal.App.4th 1599, 1611. 11 Defendant fails to acknowledge the fact that documents evidencing defendant Ayala’s 12 bonuses and raises are directly related to Plaintiff’s allegations that Defendant failed to prevent 13 sexual harassment and discrimination and that Defendant was negligent in its hiring, retention 14 and/or supervision of defendant Ayala. These documents are also relevant to show whether 15 Defendant ratified defendant Ayala’s behavior. Defendant’s blanket assertion that the documents 16 sought are irrelevant does not overcome Plaintiff’s clear explanation as to the direct relevance of 17 the document request. As such, the Court should compel Defendant to produce responsive 18 documents. 19 C. Defendant’s Privacy Objection Should Not Prevent Plaintiff from Obtaining 20 the Relevant Documents Sought Through Requests For Production Nos. 27-30 21 and 44 22 Defendant argues that its privacy objections to Requests for Production of Documents Nos. 23 27-30 and 44 are proper, but fails to address the fact that its purported privacy concerns can be 24 alleviated by a protective order, which Plaintiff has already offered to enter into. Defendant bears 25 the burden of justifying its failure to respond to Requests for Production of Documents Nos. 27-30 26 and 44, and of justifying its privacy objections, and has failed to do so. See Coy v. Superior Court 27 (1962) 58 Cal.2d 210, 220-2. The “me too” evidence at issue is directly relevant, and 28 discoverable. See Johnson v. United Cerebral Palsy/Spastic Children's Foundation of Los -6- PLAINTIFF’S REPLY ISO MOTION TO COMPEL DEFENDANT TO PROVIDE FURTHER RESPONSES TO PLAINTIFF’S REQUESTS FOR PRODUCTION 1 Angeles and Ventura Counties (2009) 173 Cal.App.4th 740, 760. See also Beyda v. City of Los 2 Angeles (1998) 65 Cal.App.4th 511; Pantoja v. Anton (2011) 198 Cal.App.4th 87, 109-110. As 3 set forth above, the requested documents related to defendant Ayala’s bonuses and raises are also 4 relevant and discoverable. As such, Defendant must provide the requested documents. 5 D. Plaintiff Has Established Good Cause to Obtain the Requested Discovery 6 Despite Defendant’s contrary contentions regarding Pantoja and Johnson, neither Pantoja 7 nor Johnson contain any limitation whatsoever which would preclude Plaintiff from obtaining the 8 “me too” evidence sought as to other employees of Defendant during the relevant time period. 9 Further, both Pantoja and Johnson are instructive here. Pantoja stands for the proposition that 10 “me too” evidence, even if it occurred outside the plaintiff’s presence and at times other than when 11 plaintiff was employed, is both relevant and discoverable, and the failure to include such “me too” 12 evidence is prejudicial to the plaintiff. Pantoja, 198 Cal.App.4th at 92. Johnson supports the 13 proposition that “me too” evidence is admissible to show, among other things, discriminatory 14 animous. Johnson, 173 Cal.App.4th at 767. 15 Documents responsive to Requests for Production of Documents Nos. 27-30 will help 16 Plaintiff establish whether Defendant changed any of its policies or practices related to sexual 17 harassment, sex discrimination, and retaliation, and whether Defendant was negligent in its hiring, 18 retention, and/or supervision of defendant Ayala. Additionally, documents reflecting other 19 complaints of sexual harassment by Defendant’s employees will establish that Plaintiff was 20 subjected to a hostile work environment during her employment with Defendant, and that 21 Defendant failed to prevent or correct the sexual harassment. 22 Furthermore, documents responsive to Request for Production of Documents No. 44 will 23 allow Plaintiff to establish that Defendant failed to prevent sexual harassment and discrimination, 24 was negligent in its hiring, retention and/or supervision of defendant Ayala, and ratified defendant 25 Ayala’s behavior. Thus, Plaintiff has established good cause for the evidence sought. 26 In sum, Defendant failed to set forth any arguments which justify its refusal to provide 27 complete responses to the requests for production of documents at issue here. With respect to 28 Requests for Production of Documents Nos. 27-30, it is unclear what Defendant is even arguing. -7- PLAINTIFF’S REPLY ISO MOTION TO COMPEL DEFENDANT TO PROVIDE FURTHER RESPONSES TO PLAINTIFF’S REQUESTS FOR PRODUCTION 1 Defendant originally objected to the time period for which Plaintiff sought the “me too” evidence 2 (See Declaration of Olivia Green, ¶ 8, Exh. A), and Defendant now seemingly concedes that 3 Plaintiff is entitled to certain “me too” evidence, but asks the Court to apply a “similarly situated” 4 standard while providing no authority which would permit the Court to do so in this case. As set 5 forth above, Defendant’s arguments are irrelevant, Defendant’s cited case law is inapposite, and 6 Defendant’s objections do not justify its failure to provide complete responses. As to Request for 7 Production of Documents No. 44, Defendant rests on objections which simply do not justify its 8 failure to produce responsive documents. 9 Accordingly, Defendant must provide complete responses to Requests for Production of 10 Documents Nos. 27-30 and 44. 11 III. CONCLUSION 12 Based on the foregoing argument and authority, Plaintiff respectfully requests that the 13 Court grant Plaintiff’s Motion to Compel Defendant to Provide Further Responses to Plaintiff’s 14 Requests for Production of Documents Nos. 27, 28, 29, 30, and 44 (Set One) in its entirety. 15 16 DATED: March 1, 2022 Respectfully submitted, 17 MATERN LAW GROUP, PC 18 19 20 By: MATTHEW J. MATERN 21 DEANNA S. LEIFER OLIVIA GREEN 22 Attorneys for Plaintiff SANDRA GAETA 23 24 25 26 27 28 -8- PLAINTIFF’S REPLY ISO MOTION TO COMPEL DEFENDANT TO PROVIDE FURTHER RESPONSES TO PLAINTIFF’S REQUESTS FOR PRODUCTION 1 PROOF OF SERVICE 2 I am employed in the County of Los Angeles, State of California. I am over the age of 18 years, and not a party to this action. My business address is 1230 Rosecrans Avenue, 3 Suite 200, Manhattan Beach, CA 90266 4 On March 1, 2022, I served the following document or documents: 5 PLAINTIFF SANDRA GAETA’S REPLY IN SUPPORT OF MOTION TO COMPEL DEFENDANT JBBC, INC. TO PROVIDE FURTHER RESPONSES TO PLAINTIFF’S 6 REQUESTS FOR PRODUCTION OF DOCUMENTS (SET ONE) 7 By e-mail or electronic transmission. I caused the documents to be sent to the 8 person at the e-mail addresses listed below. I did not receive, within a reasonable time after the transmission, any electronic message or other indication that the 9 transmission was unsuccessful. 10 Lyne A. Richardson, Esq. Attorneys for Defendant JBBC, INC. 11 Steven Mannix, Esq. DBA THE BROKEN YOLK CAFE Carolina Martis 12 lyne.richardson@ogletree.com steven.mannix@ogletree.com 13 carolina.martis@ogletreedeakins.com OGLETREE, DEAKINS, NASH, 14 SMOAK & STEWART, P.C. 19191 S. Vermont Avenue, Suite 950 15 Torrance, CA 90502 Telephone: (310) 217-8191 16 Facsimile: (310) 217-8184 17 18 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on March 1, 2022 at Manhattan Beach, California. 19 20 21 Christian Lopez 22 23 24 25 26 27 28 -1- PROOF OF SERVICE