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Pacheco v. Superior Court (Department of Water Resources)

California Court of Appeals, Third District, Sacramento
Apr 29, 2009
No. C060293 (Cal. Ct. App. Apr. 29, 2009)

Opinion


GLORIA PACHECO, Petitioner, v. THE SUPERIOR COURT OF SACRAMENTO COUNTY, Respondent DEPARTMENT OF WATER RESOURCES, Real Party in Interest. C060293 California Court of Appeal, Third District, Sacramento April 29, 2009

NOT TO BE PUBLISHED

Super. Ct. No. 06AS05541

HULL, J.

Plaintiff Gloria Pacheco initiated this original proceeding for writ of mandate seeking to overturn an order of respondent Superior Court of Sacramento County (Superior Court) denying her motion to compel real party in interest California Department of Water Resources (DWR) to comply with an earlier discovery order. The Superior Court concluded DWR adequately complied with the earlier order. Plaintiff contends the court’s conclusion in this regard is based on a misreading of the breadth of that order. We disagree and deny the requested relief.

Facts and Proceedings

On December 28, 2006, plaintiff filed this action in the Superior Court against her former employer, DWR, alleging five causes of action stemming from the termination of her employment. Plaintiff alleges she was informed she had been terminated for being absent without leave (AWOL) but this was in fact a pretext for discrimination based on ethnicity and retaliation for complaining about discrimination and filing a complaint with the Department of Fair Employment and Housing (DFEH). Plaintiff alleges she submitted a medical excuse to her employer during her absence, just as she had done many times before, but this time the excuse was rejected as inadequate.

On March 3, 2008, plaintiff sent to DWR a set of 17 requests for production of documents. Many of those requests sought documents relating to medical excuses submitted by other DWR employees over the past 10 years. For example, request No. 1 asked for all documents “containing sick leave excuses presented to YOU by any employee that was absent for five days or more in the last ten years.” Request No. 2 asked for all documents “showing the disposition of each sick leave excuse presented to YOU by any employee that was absent for five days [or] more in the past ten years.” DWR objected to each of the requests, but agreed to produce documents on five of them.

On March 28, counsel for the parties met and conferred regarding the discovery requests. Plaintiff agreed to limit her requests to the 242 employees in the division of DWR where she most recently worked, the Division of Environmental Services (DES), rather than all 3,800 employees of DWR. Plaintiff also agreed to limit the requests to the last four years. On April 17, DWR provided further responses to certain of plaintiff’s requests.

Not satisfied with DWR’s responses, plaintiff filed a motion to compel further responses. DWR filed opposition arguing, among other things, plaintiff is seeking confidential medical information about other employees that is not directly relevant to her claims. DWR further asserted compliance with the discovery requests would be unduly burdensome, because DWR has no system for logging in employment claims and the files for employment-related claims are contained in 200 boxes. DWR further explained there are a number of different ways DES supervisors track absences and that identifying employees who were absent for five or more consecutive days within the last four years would require a manual search of the files.

On July 31, Judge John N. Anton, sitting by assignment in the Superior Court, issued a tentative ruling granting in part the motion to compel. Judge Anton granted the motion as to requests Nos. 1, 2, 3, 4, 12 and 16, stating: “The information provided about the general pay raises is sufficient. As to medical excuses, all names and personal information shall be redacted so that the privacy of the other employees is protected. The plaintiff is entitled to determine whether others similarly situated were treated in a similar fashion.”

DWR requested oral argument on the motion. At the hearing, which counsel for plaintiff did not attend, counsel for DWR informed the court she requested oral argument “to seek clarification of the tentative ruling.” The following colloquy ensued:

“MS. MORRIS [counsel for DWR]: --because I’m not sure what universe, um, it had in mind with respect to the similarly situated individuals.

“THE COURT: Oh, okay.

“MS. MORRIS: Okay? Um, what the Plaintiff has asked for is medical notes for employees of the [DES]; and, um, but the way this tentative ruling is worded, we objected on the grounds of lots of different things, privacy, relevance, and so forth; and the way this is worded, I--I don’t know whether this goes to people who were also AWOL separated, people who had filed complaints against--uh, with, uh, either the [DFEH] or with OWE which is the internal, um, division that--that looks into discrimination claims, so

“THE COURT: Well, who were terminated for being AWOL. That limits

“MS. MORRIS: Who were termi-

“THE COURT: Right.

“MS. MORRIS: Okay, so--so we only have to turn over medical notes that were provided by people who were terminated for being

“THE COURT: For being AWOL, yeah. That’s their first--okay.”

Judge Anton also reversed himself as to request No. 16, denying the motion to compel on that item. He thereafter took the matter under submission and, on August 1, issued the following ruling:

“Defendant requested a definition of the ‘universe’ of persons whose records are at issue in the requests. The scope of the order is the same as what plaintiff agreed in the meet and confer process. Plaintiff agreed to narrow the scope of the request to the employees in plaintiff’s former division, approximately 242 people, for the last four years.

“The court strikes the portion of the tentative ruling granting a further response as to No. 16. The motion is denied as to No. 16.

“The ruling is otherwise affirmed.”

DWR submitted further responses on August 19, consisting of 46 pages of notes and internal memoranda regarding medical leaves taken by various employees with the names redacted as well as other materials.

On October 3, plaintiff filed a motion to compel compliance with the August 1 order. In the motion, plaintiff claimed the latest documents produced by DWR did not go back four years and were limited to employees who, like her, had been terminated for being AWOL.

Because of a pending summary judgment motion filed by DWR, the court set an expedited hearing on the motion to compel and directed that any opposing brief be filed by 3:00 p.m. on October 17 and any reply brief be filed by 12:00 p.m. on October 20.

DWR filed opposition to the motion to compel, arguing the August 1 order required it to produce only those documents relating to employees who had been terminated for being AWOL, and DWR complied with that requirement. DWR further argued plaintiff’s motion to compel is really a motion for reconsideration of the August 1 order and, in that regard, is untimely.

Plaintiff filed a reply brief at 11:49 a.m. on October 20, 11 minutes before the deadline. In it, plaintiff argued the August 1 order required DWR to produce documents in accordance with plaintiff’s agreement during the meet and confer period, and plaintiff never agreed to limit the request to employees who had been terminated.

On October 22, Judge Loren McMaster issued a tentative ruling denying plaintiff’s motion to compel. In it, Judge McMaster indicated he had not considered plaintiff’s reply brief because it was filed late. He further indicated plaintiff’s motion was untimely as a motion for reconsideration of the August 1 order. Finally, Judge McMaster indicated DWR had complied with the August 1 order as properly interpreted.

At oral argument on the motion, plaintiff argued her reply brief had been filed on time and Judge McMaster conceded the point. However, he refused to continue the hearing. Instead, he allowed the parties to argue their case. Judge McMaster thereafter concluded Judge Anton’s order required production of documents regarding medical excuses submitted by employees who had ultimately been terminated for being AWOL, and plaintiff’s motion was essentially one for reconsideration of that order and was untimely. Judge McMaster affirmed his tentative ruling.

Plaintiff filed a petition for writ of mandate in this court on October 31, 2008, seeking to overturn the October 22 order denying her motion to compel and requesting a stay of further proceedings in the Superior Court. On November 26, 2008, we issued an alternative writ and stayed all further proceedings in the Superior Court pending further order of this court.

Discussion

I

Procedural Deficiencies

As a preliminary matter, DWR contends we should deny plaintiff’s writ petition because of various procedural deficiencies. In particular, DWR asserts plaintiff violated California Rules of Court, former rule 8.490(c)(1) (now rule 8.486(b)(1)), which provides in relevant part: “A petition that seeks review of a trial court ruling must be accompanied by an adequate record, including copies of: [¶]... [¶] (D) A reporter’s transcript of the oral proceedings that resulted in the ruling under review.” (Further undesignated rule references are to the California Rules of Court.) Plaintiff did not submit with her writ petition a copy of the reporter’s transcript of the hearing before Judge McMaster. Nor did she submit a declaration of counsel, as permitted by former rule 8.490(c)(2) (now rule 8.486(b)(3)), explaining why a transcript is unavailable, fairly summarizing the proceedings, and stating that the transcript has been ordered.

DWR asserts plaintiff also violated former rule 8.490(c)(1)(B) (now rule 8.486(b)(1)(B)), requiring submission of “[a]ll documents and exhibits submitted to the trial court supporting and opposing the petitioner’s position.” DWR argues plaintiff failed to submit copies of the exhibits filed by DWR in opposition to plaintiff’s motion to compel, including a copy of the reporter’s transcript of the July 31 hearing before Judge Anton.

Finally, DWR cites rule 8.204(a)(2), which provides in relevant part: “An appellant’s opening brief must: [¶]... [¶] (C) Provide a summary of the significant facts limited to matters in the record.” DWR argues plaintiff’s petition contains many “misstatement[s] of fact, inadmissible allegation[s], and/or failure[s] to cite to the record.”

The rules of court on which DWR rely give this court discretion as to how to proceed upon noncompliance. (See rules 8.204(e)(2) & 8.486(b)(4).) We note that DWR has provided this court with copies of the reporter’s transcripts of the July 31 and October 22 hearings. As for misstatements of fact, allegations, and statements of fact not supported by citations to the record, we do not consider any matters that are not supported by citations to facts in the record. Although we do not condone failure to comply with the rules of court, in this instance we exercise our discretion to consider the merits of plaintiff’s petition notwithstanding any deficiencies.

II

Failure to Read Reply Brief

Plaintiff contends Judge McMaster violated two cannons of judicial ethics in refusing to read her reply brief before ruling on her second motion to compel. She cites Canon 2, which reads: “A judge shall avoid impropriety and the appearance of impropriety in all of the judge’s activities.” She also cites Canon 3, which reads: “A judge shall perform the duties of judicial office impartially and diligently.” Plaintiff argues she was prejudiced, because a reading of the reply brief would have disclosed Judge Anton had not in fact reversed his July 31 tentative ruling at oral argument but instead took the matter under submission and then confirmed his tentative ruling.

DWR counters that Judge McMaster did not violate any cannons of judicial ethics, because there was nothing he did that would have led anyone to doubt his impartiality, and Judge McMaster gave plaintiff ample opportunity to present her arguments at the hearing on her motion.

We need not concern ourselves with whether Judge McMaster’s failure to read the reply brief before oral argument was a violation of the aforementioned canons of judicial ethics. For plaintiff’s purposes, the salient question is not whether Judge McMaster violated ethical standards but whether she was denied due process. We conclude she was not. The court permitted plaintiff to argue her points extensively at the hearing. Although, as plaintiff argues, oral argument may not always be an adequate substitute for a carefully crafted brief, we have reviewed the reply brief and find the arguments raised therein were all presented to the court at the hearing. Plaintiff herself suggests either that we remand the case to allow the trial court to read the reply brief or we review the reply brief ourselves. As indicated, we have done the latter and have considered the reply brief, along with all other materials submitted by the parties in connection with this writ proceeding, in reaching our conclusions in this matter.

III

Interpretation of the August 1 Order

Plaintiff contends Judge McMaster misinterpreted Judge Anton’s August 1 order. She argues the order was clear and unambiguous and required DWR to provide documents regarding medical excuses submitted by any DES employee during the past four years, including those employees who were not terminated for being AWOL. Plaintiff further argues that, because the order was not ambiguous, Judge McMaster erred in considering the transcript of the July 31 hearing.

DWR counters that Judge Anton’s order was “somewhat ambiguous,” and DWR requested oral argument in order to obtain clarification. DWR further argues that, at the hearing, Judge Anton expressly clarified that the “universe” of employees covered by the order compelling production was limited to employees who had been terminated for being AWOL. DWR contends Judge McMaster was therefore right to consider the transcript of the July 31 hearing in deciding the scope of the August 1 order.

We conclude DWR has the better argument.

“The true measure of an order... is not an isolated phrase appearing therein, but its effect when considered as a whole. [Citations.] In construing orders they must always be considered in their entirety, and the same rules of interpretation will apply in ascertaining the meaning of a court’s order as in ascertaining the meaning of any other writing. If the language of the order be in any degree uncertain, then reference may be had to the circumstances surrounding, and the court’s intention in the making of the same.” (Roraback v. Roraback (1940) 38 Cal.App.2d 592, 596; see also Concerned Citizens Coalition of Stockton v. City of Stockton (2005) 128 Cal.App.4th 70, 77.) In ascertaining the court’s intention, we may consider the statements of the trial judge. (Accord Talman v. Talman (1964) 229 Cal.App.2d 39, 43; Strohm v. Strohm (1960) 182 Cal.App.2d 53, 63.)

As noted above, Judge Anton’s August 1 order read in relevant part: “Defendant requested a definition of the ‘universe’ of persons whose records are at issue in the requests. The scope of the order is the same as what plaintiff agreed in the meet and confer process. Plaintiff agreed to narrow the scope of the request to the employees in plaintiff’s former division, approximately 242 people, for the last four years. [¶]... [¶] The ruling is otherwise affirmed....”

To say that the scope of the order is “the same as what plaintiff agreed in the meet and confer process” necessarily requires reference to other materials outside the four corners of the order for clarification. Plaintiff assumes everyone understood what she had agreed upon in the meet and confer process. However, even if this is true, it still requires reference to matters outside the written order to determine what that agreement was. Furthermore, the written order does not address the critical issue of whether plaintiff was seeking materials for all employees or only those employees who had been terminated for being AWOL.

In the August 1 order, the court granted the motion to compel as to plaintiff’s request No. 3. That request read: “Please provide copies of all DOCUMENTS showing sick leave excuses presented to YOU by any employee that was absent for five days or more in the last ten years, that you accepted.” In other words, plaintiff sought all documents relating to medical excuses submitted by employees who were not terminated for being AWOL. If the court intended to limit its order to employees who had been terminated for being AWOL, there was no reason to grant the motion to compel as to request No. 3.

Furthermore, as plaintiff argues, it makes little sense for her to have agreed to limit her requests to employees who, like her, had been terminated for being AWOL. In order to prove her termination for being AWOL was a pretext for discrimination or retaliation, it would be helpful to show other employees who had been absent for five or more days and submitted medical excuses similar to the one plaintiff submitted were not terminated for being AWOL.

Nevertheless, in its August 1 order, the court otherwise affirmed its tentative ruling. That ruling read in relevant part:

“Plaintiff alleges that she was discriminated against due to her ethnicity. Plaintiff alleges that after defendant’s [sic] fired her because she was AWOL for more than five days without a valid excuse, was was [sic] not reinstated for discriminatory reasons.

Plaintiff seeks information about other employees who were terminated for being AWOL. Plaintiff agrees to redact all private information and to narrow the scope of time to four years and the number of employees who were in her unit.

“Granted: Nos. 1, 2, 3, 4, 12, and 16. The information provided about the general pay raises is sufficient. As to the medical excuses, all names and personal information shall be redacted so that the privacy of the other employees is protected. The plaintiff is entitled to determine whether others similarly situated were treated in a similar fashion.

“Denied: Nos. 5, 6, 8 and 13. No good cause has been shown to obtain personal information about others fired for being AWOL, or other complaints or settlements.” (Italics added.)

The italicized portion of the tentative ruling suggests the court believed plaintiff was only seeking information about other employees who had been terminated for being AWOL. It is therefore reasonable to assume the remainder of the court’s ruling is informed by that belief.

In light of the apparent inconsistency between the statements in the tentative ruling that plaintiff was only seeking information about employees who had been terminated for being AWOL and the grant of the motion to compel as to request No. 3, Judge McMaster was warranted in reviewing the transcript of the July 31 hearing. That transcript clearly supports the conclusion that Judge Anton intended to limit his order to employees who had been terminated for being AWOL.

We emphasize that we are not asked in this writ proceeding to consider the propriety of Judge Anton’s order. Plaintiff did not seek reconsideration of that order or petition this court to overturn it. We therefore express no opinion as to whether Judge Anton abused his discretion in limiting plaintiff’s discovery requests to employees who had been terminated for being AWOL.

Disposition

The alternative writ, having fulfilled its purpose, is hereby dissolved, and the stay issued by this court on November 26, 2008, is hereby vacated. Plaintiff’s petition for writ of mandate is denied.

We concur: BLEASE, Acting P. J., ROBIE, J.


Summaries of

Pacheco v. Superior Court (Department of Water Resources)

California Court of Appeals, Third District, Sacramento
Apr 29, 2009
No. C060293 (Cal. Ct. App. Apr. 29, 2009)
Case details for

Pacheco v. Superior Court (Department of Water Resources)

Case Details

Full title:GLORIA PACHECO, Petitioner, v. THE SUPERIOR COURT OF SACRAMENTO COUNTY…

Court:California Court of Appeals, Third District, Sacramento

Date published: Apr 29, 2009

Citations

No. C060293 (Cal. Ct. App. Apr. 29, 2009)