Judge: Anne Richardson, Case: 22STCV21534, Date: 2024-10-30 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: 22STCV21534    Hearing Date: October 30, 2024    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

I. Background

A. Pleadings

Plaintiff Pamela Cook sues Defendants University of Southern California (USC), Fatima Manuao (Manuao), Lorena (Last Name Unknown; hereafter, Lorena) (collectively, Defendants), and Does 1 to 100 pursuant to a July 1, 2022 Complaint alleging claims of (1) FEHA Race/Color/National Origin/Ancestry Discrimination, (2) FEHA Disability Discrimination, (3) Failure to Accommodate or Engage in a Good Faith Interactive Process, (4) FEHA Retaliation, (5) FEHA Hostile Work Environment [Harassment], (6) FEHA Failure to Prevent Discrimination, Harassment, and Retaliation, (6) Interference/Retaliation and Violation of Paid Sick Leave, (8) Failure to Pay Wages, (9) Failure to Reimburse Employee for Necessary Expenditures, (10) Failure to Prove Correct Itemized Wage Statements, (11) Failure to Provide Final Pay and Penalty, (12) Interference with/Violations of Kin Care, (13) Interference with/Violations of Paid Sick Leave, (14) Wrongful Termination, (15) Negligent Hiring and Retention, (16) IIED, (17) Labor Code Whistleblower Retaliation, and (18) Violation of Business and Professions Code § 17200, et seq.

The claims arise from allegations that in her employment with USC, among other things, Plaintiff—an African American individual suffering from high blood pressure, headaches/migraines, stress, right foot injury, and COVID-19/potential COVID-19—was subject to disparate treatment based on race—e.g., racial slurs about “you people” against her—prompting Plaintiff to file hostile work environment complaints with USC, which were not acted upon, and that Plaintiff was not accommodated as to a variety of health related time-off requests on the grounds that her requests were wrong or unprofessional, all culminating in her constructive discharge on August 24, 2021

B. Motion Before the Court

On September 29, 2022, Cook propounded Form Interrogatories, Set One (FROGs) and Request for Production of Documents, Set One (RFPs) on Defendant USC. (Both Motions, Ex. 1.) According to the proofs of service, the discovery was served on USC via email and mail on September 29, 2022.) (Both Motions, Ex. 1, Proof of Service.)

On September 10, 2024, Cook filed the instant motions: (1) Motion to Compel Responses to FROGs, Set One and Request for Sanctions; and (2) Motion to Compel Responses to RFP, Set One and Request for Sanctions. 

On October 18, 2024, USC filed a joint opposition to the motions.

On October 23, 2024, Cook filed separate replies to the joint opposition.

II. Motion

A. Legal Standard

A motion to compel an initial response can be made on the ground that a party did not serve a timely response to interrogatories or a demand to produce. (Code Civ. Proc., §§ 2030.290, subd. (a) [interrogatories], 2031.300, subd. (a) [demand to produce]; see Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 404 (Sinaiko).)

The discovering party can make a motion to deem as admitted any unanswered requests for admission or any requests answered in a late or unverified response. (See Code Civ. Proc., § 2033.280, subd. (b); Code Civ. Proc., § 2033.240, subd. (a) [RFA responses must be signed by responding party under oath]; see Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 636 [unsworn response to RFAs is treated like no response].) These requests are not automatically deemed admitted; the discovery party must make the motion. (See Code Civ. Proc., § 2033.280, subd. (b).)

To establish this ground, a movant must show: 

(1) Proper service (see Code Civ. Proc., §§ 2030.080, subd. (a) [interrogatories], 2031.040 [demand to produce], 2033.070 [admissions].); 

(2) Expiration of the deadline for the initial response 30 days after service or on date agreed to by parties (see Code Civ. Proc., §§ 2030.260, subds. (a), (b) [interrogatories], 2031.260, subds. (a), (b) [demand to produce], 2033.250, subds. (a), (b) [admissions].); and 

(3) No timely response (see Code Civ. Proc., §§ 2030.290 [interrogatories], 2031.300 [demand to produce], 2033.280, subd. (b) [admissions]).

The Court retains jurisdiction to rule on the merits of discovery motions even after requested discovery was provided after the motion was filed. (Sinaiko, supra, 148 Cal.App.4th at p. 409.)

B. Analysis

Here, the discovery was served via email and mail on USC on September 29, 2022. (Both Motions, Ex. 1, Proof of Service.) The deadline to respond was 30 days after service, plus five days for service via mail (Code Civ. Proc. § 1013 subd. (a).) Thus, responses were due on November 3, 2022.

In opposition, USC argues that Cook granted USC an extension to respond to discovery through May 2023, and additionally that this case was stayed from October 24, 2022 through the date the remittitur was issued on August 20, 2024. (Opp. pp. 2-3.) USC asserts that its objections are not waived because the responses came due during the stay. (Opp. pp. 3-4.) Lastly, USC argues that sanctions are not warranted because in September 2024 USC offered to provide discovery responses by October 24 and stipulate to continue the motion to compel hearing until November 28. (Guy Decl., ¶ 3, Ex. B.)

In its October 23 reply, Cook argues that Defendant still has not served responses or objections of any kind, and that it has been 65 days since remittitur has issued and this case became active again in the trial court. Thus, Cook argues that even if there was a stay during the appeal (which she disputes, citing Code of Civil Procedure section 1281.4 and caselaw), USC has not served any timely responses.

As of the date of the hearing on these motions, there is no evidence before the Court that USC has served the requested discovery responses.  Accordingly, Cook’s motion to compel discovery responses (FROGs, Set One) is GRANTED and Cook’s motion to compel discovery responses (Production of Documents) is GRANTED.

III. Request for Sanctions

A.    Legal Standard

The Court must impose monetary sanctions against anyone—party, nonparty, or attorney—who unsuccessfully makes or opposes the motion, unless it finds that the person to be sanctioned acted with substantial justification or other circumstances make the imposition of the sanctions unjust. (See Code Civ. Proc., §§ 2030.290, subd. (c) [interrogatories], 2031.300, subd. (c) [demand to produce]; see Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants, supra, 148 Cal.App.4th at p. 404 [interrogatories and demand to produce].)

The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed. (Cal. Rules of Court, rule 3.1348, subd. (a).)

Even after a party provides discovery responses, a party can keep its motion on calendar and the court has authority to grant sanctions, even if it denies the motion to compel responses “as essentially unnecessary, in whole or in part.” (Sinaiko, supra, at p. 409.)

B.    Analysis

Cook requests sanctions for the motion to compel discovery responses (FROGs, Set One) against Defendant USC and/or its counsel of record John Giovannone, in the total amount of $2,310.00 based upon counsel’s rate of $450.00/hour for 5.0 total hours of work as follows: (1) 3.0 hours to prepare this motion, (2) 1.0 hour reviewing the opposition and preparing a reply brief, (3) 1.0 hour preparing for and attending the hearing, and (4) $60.00 filing fee. (Both Motions, pp. 8-9.)

The request for sanctions is GRANTED in the total amount of $2,310.00.

Cook also requests sanctions for the motion to compel discovery responses (Production of Documents) against Defendant USC and/or its counsel of record John Giovannone, in the total amount of $2,310.00 based upon counsel’s rate of $450.00/hour for 5.0 total hours of work as follows: (1) 3.0 hours to prepare this motion, (2) 1.0 hour reviewing the opposition and preparing a reply brief, (3) 1.0 hour preparing for and attending the hearing, and (4) $60.00 filing fee. (Both Motions, pp. 8-9.)

As USC filed a single brief opposition to both motions and this hearing is set for the same day and time as the hearing for the motion to compel discovery responses to the Form Interrogatories, Set One (FROGs), the request for sanctions will be reduced by 2.0 hours.

The request for sanctions is GRANTED in the reduced amount of $1,410.00.

IV. Conclusion

The Motion to Compel Discovery Responses (Form Interrogatories) [RES ID # 4836] is GRANTED. Defendant USC is ordered to serve fully compliant responses without objections within 20 days. The request for sanctions is GRANTED in the amount of $2,310.00

The Motion to Compel Discovery Responses (Request for Production) [RES ID # 9755] is GRANTED. Defendant USC is ordered to serve fully compliant responses without objections, as well as the responsive documents, within 20 days. The request for sanctions is GRANTED in the reduced amount of $1,410.00.