Judge: Anne Richardson, Case: 21STCV00475, Date: 2023-08-29 Tentative Ruling

DEPARTMENT 40 - JUDGE ANNE RICHARDSON - LAW AND MOTION RULINGS
The Court issues tentative rulings on certain motions.The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) email Dept 40 by 8:30 a.m. on the day of the hearing (smcdept40@lacourt.org) with a copy to the other party(ies) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no email is necessary and all parties should appear at the hearing in person or by Court Call. 

Case Number: 21STCV00475    Hearing Date: February 26, 2024    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

Background

Pleadings

Plaintiff Mirta Obregon sues Defendants Personnel Staffing Group, LLC (PSG), OS4Labor LLC (OS4Labor), Molex LLC (Molex), Arsenio Rojo (correct surname Rojas), Richard Orozco, Doe 1 Bryan Gordon, and Does 2-25 pursuant to a Complaint alleging causes of action of (1) FEHA Discrimination, (2) FEHA Harassment, (3) FEHA Retaliation, (4) Failure to Prevent FEHA Discrimination, Harassment, and Retaliation, (5) Assault, (6) Battery, (7) Sexual Battery, (8) Violation of Civil Code Section 51.7, (9) Violation of the Tom Bane Civil Rights Act (Civ. Code, § 52.1), (10) Retaliation (Cal. Labor Code § 1102.5), (11) Declaratory Judgment, (12) Wrongful Termination in Violation of Public Policy, (13) Intentional Infliction of Emotional Distress, (14) Negligent Hiring, Supervision, and Retention of Employee, and (15) Failure to Comply with Employee’s Request to Inspect Records (Violation of Cal. Lab. Code §§ 226, 1198.5).

The claims arise from allegations that, among other things, Defendants PSG, OS4Labor, and Molex employed Plaintiff—where PSG and OS4Labor appear to be employment agencies working under contract with Molex—and that, during her employment with these Defendants, Defendant Rojas—a supervisor of Plaintiff Obregon—exposed his genitalia to Plaintiff on numerous occasions and made statements alluding to his desire to commit sexual acts with Plaintiff, while Defendant Orozco—another supervisor of Plaintiff’s—sexually harassed Plaintiff by touching her buttocks and by texting Plaintiff about her beauty or inviting her to dine together and making comments regarding his ability to help Plaintiff secure a raise. The Complaint alleges that Plaintiff reported these actions to Human Resources, which ultimately failed to act on the complaints. The Complaint also alleges that Plaintiff rebuffed these advances by her supervisors, leading Defendant Orozco to become hostile with Plaintiff Obregon, and culminating in Plaintiff Obregon’s termination from employment with Defendants on December 19, 2019.

Relevant Procedural Background

On April 9, 2021, Plaintiff Obregon served on Defendant OS4Labor Form Interrogatories – General, Set One, Form Interrogatories – Employment, Set One, Special Interrogatories, Set One, and Request for Production, Set One.

Responses to this discovery were due on May 11, 2021.

On May 18, 2021, Plaintiff’s counsel sent a letter to OS4Labor’s counsel to inquire into OS4Labor’s failure to respond and giving OS4Labor until May 21, 2021 to respond to the discovery.

By July 18, 2023, OS4Labor had failed to provide responses to the four sets of discovery.

That same day, Plaintiff Obregon filed motions to compel initial responses to Form Interrogatories – General, Set One, Form Interrogatories – Employment, Set One, Special Interrogatories, Set One, and Request for Production, Set One.

On July 19, 2023, Plaintiff Obregon filed an ex parte application to specially set a hearing date for the four motions or, in the alternative, to continue trial.

On July 21, 2023, the Court heard the ex parte application, advanced the hearing on the four motions to August 29, 2023, and continued trial to November 28, 2023.

On August 16, 2023, OS4Labor opposed Plaintiff Obregon’s four motions.

On August 29, 2023, the Court granted Plaintiff’s motions and ordered OS4Labor to, within 14 days of the ruling, (1) provide responses and/or production to Form Interrogatories – General, Set One, Form Interrogatories – Employment, Set One, Special Interrogatories, Set One, and Request for Production, Set One, and (2) pay sanctions of $3,756.60 to Plaintiff.

On October 16, 2023, Plaintiff filed a motion for terminating sanctions based on OS4Labor’s continued failure to produce the court-ordered discovery and pay the sanctions ordered by the Court on August 29, 2023. The motion was set for hearing on January 2, 2024.

On October 20, 2023, Plaintiff filed an ex parte application to specially set a hearing date for the motion for terminating sanctions or, in the alternative, continue trial.

On October 25, 2023, the Court heard and granted Plaintiff’s ex parte application, advancing and continuing the hearing on Plaintiff’s motion for terminating sanctions from January 2, 2024 to November 14, 2023. The Court permitted OS4Labor to file an opposition no later than November 3, 2023 and OS4 Labor to file a reply no later than November 9, 2023.

On November 3, 2023, OS4Labor opposed the motion for terminating sanctions.

On November 14, 2023, the motion for terminating sanctions came before the Court, at which time the Court heard from counsel and noted OS4Labor’s counsel’s representation that OS4Labor would provide discovery responses by e-mail by Friday, November 17, 2023.

On November 21, 2023, Plaintiff Obregon filed a supplemental declaration purporting but failing to attach copies of OS4Labor’s responses to Form Interrogatories – General, Set One, Form Interrogatories – Employment, Set One, Special Interrogatories, Set One, and Request for Production, Set One.

On November 22, 2023, the motion came before the Court, at which time the Court denied Plaintiff Obregon’s motion, without prejudice, on two grounds: (1) the responses challenged as insufficient were, in fact, prima facie compliant, if produced a mere 11 days before trial; and (2) because sanctions are supposed to be imposed in an incremental fashion, terminating sanctions were too drastic a remedy. The Court continued the trial to March 5, 2024. The Court “specifically admonished [OS4Labor] to fully and timely participate in this case going forward.”

Later that day, Plaintiff Obregon refiled the supplemental declaration, which properly attached the responses to Form Interrogatories – General, Set One, Form Interrogatories – Employment, Set One, Special Interrogatories, Set One, and Request for Production, Set One.

Motion Before the Court

On January 24, 2024, Plaintiff Obregon filed a motion for terminating sanctions or, in the alternative, for an order compelling further production of documents responsive to Plaintiff’s RPDs, Set One. The motion is based on OS4Labor’s failure to produce production in relation to RPDs, Set One, as ordered by this Court on August 29, 2023, and as due on December 29, 2023, the date agreed upon for production by the parties.

That same day, Plaintiff Obregon filed an ex parte application to advance the hearing on Plaintiff’s motion from April 10, 2024 to an earlier date.

On January 29, 2024, the Court granted the ex parte application at a hearing attended by defense counsel. The hearing was advanced and continued to February 26, 2024.

On February 20, 2024—i.e., after the date for filing the opposition, February 12, 2024, had passed pursuant to Code of Civil Procedure section 1005, subd. (b)—Defendant OS4Labor filed an opposition to Plaintiff’s motion. The motion shows service via email on an email address for defense counsel Pier Paolo Caputo that also appears in the moving papers.

No reply appears in the record. Neither does any filing appear in the record challenging the late filing of OS4Labor’s opposition.

Plaintiff Obregon’s motion is now before the Court.

Motion for Terminating Sanctions or Further Production

I.

Legal Standard, Terminating Sanctions

Terminating sanctions are drastic sanctions that should be imposed sparingly and only when it is clear that the party to be sanctioned has left no viable alternatives. (See Dept. of Forestry & Fire. Prot. v. Howell (2017) 18 Cal.App.5th 154, 191 [Dept. of Forestry], disapproved on other grounds in Presbyterian Camp & Conf. Ctrs, Inc. v. Superior Court (2021) 12 Cal.5th 493; Lopez v. Watchtower Bible & Tract Soc’y (2016) 246 Cal.App.4th 566, 604.) The court should consider the totality of the circumstances before ordering terminating sanctions, including (1) whether the conduct of the party was willful, (2) the detriment to the party propounding discovery, and (3) the number of formal and informal attempt to obtain the discovery. (Los Defensores, Inc. v. Gomez (2014) 223 Cal.App.4th 377, 390 (Los Defensores).) The Court is not required to find that a party acted in bad faith before imposing terminating sanctions. (See Creed-21 v. City of Wildomar (2017) 18 Cal.App.5th 690, 703.)

If terminating sanctions are warranted, the Court may make:

(1) An order striking all or parts of the pleadings (Code Civ. Proc., § 2023.030, subd. (d)(1); Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992 (Doppes); Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1519 [trial court struck defendant’s answer]);

(2) An order staying proceedings until a party obeys a discovery order (Code Civ. Proc., § 2023.030, subd. (d)(2); Doppes, supra, 174 Cal.App.4th at p. 992);

(3) An order dismissing all or part of a party’s action (Code Civ. Proc., § 2023.030, subd. (d)(3); Doppes, supra, 174 Cal.App.4th at p. 992; see, e.g., Crawford v. JPMorgan Chase Bank (2015) 242 Cal.App.4th 1265, 1271 [dismissal proper when party threatened to use pepper spray and taser on opposing counsel at deposition and was openly contemptuous of trial court]); and

(4) An order rendering a default judgment against a party (Code Civ. Proc., § 2023.030, subd. (d)(4); Doppes, supra, 174 Cal.App.4th at p. 992; see, e.g., Electronic Funds Solutions, LLC v. Murphy (2005) 134 Cal.App.4th 1161, 1183-1184 [defendant’s pervasive and consistent misuse of discovery process supported court’s dismissal of answer and entry of default judgment]; but see Nickell v. Matlock (2012) 206 Cal.App.4th 934, 943-944 [Code Civ. Proc., § 764.010 prohibits court from rendering judgment by default as discovery sanction in quiet title actions]).

II.

Legal Standard, Motion to Compel Further Production Based on Statement of Compliance

A discovering party may file a motion to compel compliance with a demand to produce when the responding party does not permit inspection, copying, testing, sampling, or measuring in accordance with the compliance statement the responding party serves in respond to the demand to produce. (Code Civ. Proc., § 2031.320, subd. (a).)

III.

Order Granting Terminating Sanctions or Further Production: GRANTED, in part, as to further responses; otherwise, DENIED.

RPDs, Set One, contains 54 production requests and was served on April 9, 2021. (7/18/23 Mot. [CRS# 9193], Ritivoiu Decl., Ex. 1 [copy of RPDs, Set One].)

In her motion, Plaintiff argues that terminating sanctions are warranted here because OS4Labor had, as of the date the motion was filed, failed to serve supplemental responses to RPDs, Set One, as ordered by this Court, and as due on December 29, 2023 per the parties’ agreement. In the alternative, Plaintiff seeks an order compelling further production pursuant to OS4Labor’s statements of compliance, promising to make initial production as ordered by the Court on August 29, 2023 and requested in RPDs, Set One. (Mot., pp. 3-5 & Ritivoiu Decl., ¶¶ 1-14, Exs. A-J; see 11/22/23 Supp. Caputo Decl., Ex. G [responses to RPDs, Set One].)

In opposition, OS4Labor argues that the motion should be denied as procedurally defective because the moving papers misidentify OS4Labor as Defendant PSG in various instances. OS4Labor also argues that the moving papers improperly combined two motions into one. OS4Labor adds context for its litigation conduct in recent days, arguing that it has complied with its discovery obligations as to the interrogatories at issue in the November 22, 2023 order, that the Court’s November 22, 2023 order recognized that OS4Labor’s discovery responses to the four sets of discovery were sufficient, and that Plaintiff has failed to indicate whether she will file a further motion to compel further responses as to that discovery. OS4 Labor otherwise argues that terminating sanctions here would be punitive, result in non-application of the incremental approach to sanctions, and result in a remedy more drastic than summary judgment. (Opp’n, pp. 1-5.)

The Court finds in favor of Plaintiff Obregon as to compelling further production, but only in part.

A. Alleged Procedural Defects

The Court initially determines that the moving papers are not procedurally defective. While the moving papers incorrectly refer to OS4Labor as “Personnel Staffing” in various locations, the motion is clearly directed at OS4Labor and placed it on notice of its failure to comply with the Discovery Act and this Court’s orders in relation to making initial production responsive to RPDs, Set One. Moreover, the Court determines that a single motion requesting alternative relief based on the Discovery Act is properly before the Court and not limited by any authority cited by OS4Labor.

B. Terminating Sanctions

The Court determines that terminating sanctions would not be proper. This is because when faced with a party’s misuse of the discovery process, a trial court “should” impose “[t]he penalty … appropriate to the dereliction.” (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 793 (Deyo).) The purpose of discovery sanctions is to “protect the interests of the party entitled to[,] but denied[,] discovery,” not to “punish[]” the non-compliant party or to “put the prevailing party in a better position than he would have had if he had obtained the discovery sought.” (Deyo, supra, at p. 793; accord Sherman v. Kinetic Concepts, Inc. (1998) 67 Cal.App.4th 1152, 1163 (Sherman); Doppes, supra, 174 Cal.App.4th at p. 992.) Proportionality is critical when it comes to terminating sanctions because they altogether deny the non-compliant party a hearing on the merits and thus implicate due process. (Lopez v. Watchtower Bible & Tract Society of New York (2016) 246 Cal.App.4th 566, 604.)

Here, OS4Labor complied with the Court’s August 29, 2023 order by providing initial responses to RPDs, Set One, if quite late. (11/22/23 Supp. Caputo Decl., Ex. G [responses to RPDs, Set One].) (It must be noted, however, that OS4Labor does not appear to have paid the sanctions tied to RPDs, Set One, as set out in the August 29, 2023 order, thus constituting an ongoing violation of that order. (Compare Mot., Ritivoiu Decl., ¶ 14 [no sanctions paid as of January 23, 2024], with Opp’n, pp. 1-5 [failing to mention payment of sanctions].))

In light of these circumstances, the Court determines that terminating sanctions are not proper at this time.

C. Compel Further Production, Code Civ. Proc., § 2031.320

However, the Court determines that an order compelling further production pursuant to Code of Civil Procedure section 2031.320 is proper as to RPDs, Set One, Nos. 1-6, 8-15, 17-21, 26-40, and 46-51.

A review of OS4Labor’s responses shows that OS4Labor made statements of compliance as to some production requests promising production at a later time as it became available (Nos. 1-6, 8-15, 17-21, 26-40, 46-51), and otherwise stated reasons why the requested production is not discoverable: request not applicable (Nos. 7, 41-42, 44-45); no responsive documents available to the request (No. 16, 52-54); or responsive documents are in Plaintiff’s custody and control (Nos. 22-25, 43). (11/22/23 Supp. Caputo Decl., Ex. G [responses to RPDs, Set One].)

However, as of January 23, 2023, OS4Labor had not complied with its statements of compliance or paid sanctions in relation to RPDs, Set One, as ordered on August 29, 2023. (Mot., Ritivoiu Decl., ¶ 14 [no document production or sanctions paid as of January 23, 2024].)

Nowhere in the opposition does OS4Labor dispute the moving papers’ contention that no production has been made pursuant to the statements of compliance in OS4Labor’s November 2023 production responses or that it has failed to pay sanctions in relation to RPDs, Set One, and the August 29, 2023, order. (Opp’n, pp. 1-5.)

Thus, the most proportional relief here is to grant the alternative relief requested by Plaintiff Obregon and order further production as to RPDs, Set One, Nos. 1-6, 8-15, 17-21, 26-40, and 46-51.

Plaintiff’s motion is GRANTED as to those production requests.

However, Plaintiff’s motion is DENIED as to RPDs, Set One, Nos. 7, 16, 22-25, 41-45, and 52-54.

No statement of compliance was offered as to these production requests—stating request not applicable (Nos. 7, 41-42, 44-45), no responsive documents available to the request (No. 16, 52-54), or responsive documents are in Plaintiff’s custody and control (Nos. 22-25, 43)—making a motion pursuant to Code of Civil Procedure section 2031.310 the appropriate procedural vehicle.

The Court also notes that to the extent that OS4Labor’s July 18, 2023 and November 3, 2023 oppositions stated they would comply with production in relation to RPDs, Set One, those statements are, for the Court, not the statements of compliance at issue when interpreting Code of Civil Procedure section 2031.320. On November 22, 2023, Plaintiff Obregon filed OS4Labor’s supplemental responses with the Court, and the statements of compliance in those responses control for the purposes of OS4Labor’s obligation to produce documents pursuant to this statutory section. (11/22/23 Supp. Caputo Decl., Ex. G [responses to RPDs, Set One].)

The Court briefly notes that (1) Plaintiff Obregon’s motion did not request issue or evidence sanctions in relation to RPDs, Set One, (2) any production pursuant to this order by OS4Labor must be promptly produced as ordered below because trial will be taking place eight days from this hearing, and (3) the Court has previously stated that “[t]he new trial date is firm and will not be moved absent good cause.” (11/22/23 Minute Order, p. 6.) The parties are reminded of their obligations under this Court’s Trial Readiness Order and Local Rule 3.25(f).

Conclusion

I.

Plaintiff Mirta Obregon’s Motion for Terminating Sanctions [or, in the Alternative, to Compel Further Production Based on Statements of Compliance] is GRANTED in part and DENIED in part:

(1) DENIED as to terminating sanctions;

(2) GRANTED as to compelling further responses and production in response to Request for Production, Set One, Nos. 1-6, 8-15, 17-21, 26-40, and 46-51; and

(3) DENIED as to compelling further responses and production in response to Request for Production, Set One, Nos. 7, 16, 22-25, 41-45, and 52-54.

The Court ORDERS Defendant OS4Labor to produce documents responsive to Request for Production, Set One, Nos. 1-6, 8-15, 17-21, 26-40, and 46-51 within three days of this ruling.

The Court reserves its right to make further orders regarding this or other failures to comply with court rules and statutes in connection with a subsequent request for sanctions.

II.

The Court also ORDERS Defendant OS4Labor to comply with this Court’s August 29, 2023 order and remit sanctions of $939.15 to Plaintiff Mirta Obregon by Monday, March 4, 2021. (Code Civ. Proc., § 128.7, subd. (a)(4) [Every court has power to compel obedience to its judgments, orders, and process].)