Judge: Anne Richardson, Case: 23STCV01110, Date: 2023-11-13 Tentative Ruling

Case Number: 23STCV01110    Hearing Date: April 5, 2024    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

I. Background

Plaintiff Karen Flores (Plaintiff) sues Defendants Everbrands, Inc., a California Corporation (Everbrands CA), Everbrands, Inc., a Delaware Corporation (Everbrands DE) (collectively, Everbrands, Inc.), Michael Florman (Florman), Yon Lai (Lai), and Does 1-25 pursuant to a January 18, 2023 Complaint alleging claims of (1) Failure to Pay a Minimum Wage, (2) Failure to Pay Overtime, (3) Failure to Provide Rest Breaks, (4) Failure to Provide Meal Breaks, (5) Inaccurate Wage Statements, (6) Waiting Wage Penalties (Cal. Labor Code §§ 201-203), (7) Unfair Competition and Unlawful Business Practices – (Cal. Bus. Code § 17200), and (8) Failure to Provide Records.

The claims arise from allegations that when Plaintiff was employed by Defendants, she was paid less than the applicable minimum wage, was not compensated for overtime, and was not compensated for and/or provided meal and rest breaks.

On February 14, 2024, Plaintiff Flores filed a motion for terminating or issue and evidence sanctions against Defendant Florman for failure to sufficiently respond to Plaintiff’s Form Interrogatory No. 15.1 relating to the bases for Defendant Florman’s affirmative defenses and denials. The motion also seeks in the alternative an order compelling further interrogatory responses, as well as further monetary sanctions against Defendant Florman and counsel.

On March 22, 2024, Defendant Florman filed an opposition.

That same day, Plaintiff Flores filed a corrected separate statement in connection with her motion.

On March 29, 2024, Plaintiff Flores filed a reply.

Plaintiff Flores’s motion is now before the Court.

II. Discussion

A. Motions to Compel Further Interrogatory Responses and for Monetary, Issue, and Evidence Sanctions: DENIED.

1. Relevant Law

A separate statement must be filed in relation to motions to compel further interrogatory responses and in relation to motions for issue and terminating sanctions. (Cal. Rules of Court, rule 3.1345(a)(2), (7).)

The purpose of the separate statement is to streamline adjudication of discovery motions. (Mills v. U.S. Bank (2008) 166 Cal.App.4th 871, 893 (Mills).)

The separate statement must be full and complete so that no person is required to review any other document in order to determine the full request and the full response. Material must not be incorporated into the separate statement by reference. The separate statement must include-for each discovery request (e.g., each interrogatory, request for admission, deposition question, or inspection demand) to which a further response, answer, or production is requested-the following:

(1)  The text of the request, interrogatory, question, or inspection demand;

(2)  The text of each response, answer, or objection, and any further responses or answers;

(3)  A statement of the factual and legal reasons for compelling further responses, answers, or production as to each matter in dispute;

(4)  If necessary, the text of all definitions, instructions, and other matters required to understand each discovery request and the responses to it;

(5)  If the response to a particular discovery request is dependent on the response given to another discovery request, or if the reasons a further response to a particular discovery request is deemed necessary are based on the response to some other discovery request, the other request and the response to it must be set forth; and

(6)  If the pleadings, other documents in the file, or other items of discovery are relevant to the motion, the party relying on them must summarize each relevant document.

(Cal. Rules of Court, rule 3.1345(c)-(c)(6).)

2. Parties’ Arguments

Defendant Florman’s opposition challenges Plaintiff Flores’s motion based on amended responses that have been provided to Plaintiff, as well as Plaintiff’s defective separate statement. Defendant Florman argues that the separate statement attached to the moving papers did not contain a section substantively addressing why further responses to Form Interrogatory No. 15.1—the discovery here at issue—should be compelled. Defendant Florman also explains Plaintiff Flores’s counsel emailed a corrected separate statement the day on which the opposition was due, leaving Defendant Florman’s counsel insufficient time to respond to the corrected separate statement. (Opp’n, pp. 5-6.)

In reply, Plaintiff Flores argues that the complaints regarding the separate statement are not material because Plaintiff served a corrected separate statement and offered additional time for Plaintiff to respond (a continuance), with Defendant Florman first agreeing and then rescinding agreement to a continuance. Plaintiff Flores also argues that the reasons for granting the motion are in the points and authorities for the moving papers, demonstrating a lack of prejudice. (Reply, pp. 6-7.)

3. Court’s Determination

The Court finds that the moving papers here were defectively filed as to compelling further interrogatory responses and as to issue and evidence sanctions, thus undercutting the grounds for monetary sanctions.

The separate statement supporting those motions was initially filed on February 14, 2024, with Plaintiff Flores’s moving papers. Critically, it fails to include a section explaining the reasons why Defendant Florman’s then-most recent responses to Form Interrogatory No. 15.1 were deficient. (See Mot., Separate Statement, p. 13.)

Plaintiff Flores filed a corrected separate statement on the same day the opposition was filed—March 22, 2024—which argues, in full: “The response simply does not answer the question posed, because it does not identify which paragraphs are being denied, the facts that support the denial of the same, or the witnesses and documents that support each denial. Here, there have been multiple amendments to this interrogatory, and none of the amendments actually answer the question posed.” (3/22/24 Corrected Separate Statement.)

Both of these separate statements are defective.

The original version was defective for failure to contain “[a] statement of the factual and legal reasons for compelling further responses, answers, or production as to each matter in dispute.” (Cal. Rules of Court, rule 3.1345(c)(3).)

The corrected version fails to sufficiently elaborate the same requirement, altogether failing to explain how Defendant Florman failed to answer the questions posed of Form Interrogatory No. 15. This defect is all the more glaring where the responses, including the amended responses in the corrected version includes multiple facts specific to the General Denial and to each affirmative defense as well as multiple witnesses and documents to support the same. There are no other denials in either the original Answer filed on July 24, 2023 or the Amended Answer that was filed upon stipulation and order on April 2, 2024.  Thus, even if the Court were to consider the corrected version, which was filed late, the Court lacks the ability to make the determination requested by Plaintiff Flores.

The Court thus DENIES Plaintiff’s motion insofar as it relates to compelling further interrogatory responses and to monetary, issue, and evidence sanctions.

B. Terminating Sanctions: DENIED.

1. Relevant Law

Code of Civil Procedure section 2023.030 permits California courts to impose terminating sanctions for discovery misuses, which are defined by section 2023.010 of the Code of Civil Procedure. (See Peat, Marwick, Mitchell & Co. v. Superior Court (1988) 200 Cal.App.3d 272, 288 [The court’s inherent power to curb abuses and promote fair process extends to the preclusion of evidence].)

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, 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 trial court should consider both the conduct being sanctioned and its effect on the party seeking discovery and, in choosing a sanction, should “‘attempt[] to tailor the sanction to the harm caused by the withheld discovery.’” [Citation.] […] [¶] The discovery statutes evince an incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination. “Discovery sanctions ‘should be appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party entitled to but denied discovery.’” [Citation.] If a lesser sanction fails to curb misuse, a greater sanction is warranted: continuing misuses of the discovery process warrant incrementally harsher sanctions until the sanction is reached that will curb the abuse.’” (Padron v. Watchtower Bible & Tract Society of New York, Inc. (2017) 16 Cal.App.5th 1246, 1259-1260, quoting Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992.)

2. Parties’ Arguments

Plaintiff Flores’s moving papers argue in essence that terminating or issue and evidence sanctions as to Form Interrogatory 15.1 are warranted against Michael Florman based on Florman serving identical responses to Form Interrogatory 15.1 on four different occasions while promising updated responses that differed from the previously served responses. Defendant Florman also argues in favor of the relevance of the sought-after discovery. (See Mot., pp. 4-5, 5-10.)

In opposition, Defendant Florman argues that Plaintiff misinterprets what Interrogatory No. 15.1 requests of Florman, that Plaintiff Flores failed to properly meet and confer as to Florman’s final—and sufficiently updated—discovery responses prior to Plaintiff Florman filing this motion, and that terminating sanctions are not proper without prior discovery orders relating to Form Interrogatory No. 15.1. (Opp’n, pp. 1-7.)

In reply, Plaintiff Flores reiterates that Defendant Florman did not—and admits that he did not—answer the interrogatory at issue as posed, makes an argument related to a previously scheduled discovery conference raised in the opposition, and rebuts the opposition meet and confer argument. (Reply, pp. 2-6.)

3. Court’s Determination

The Court finds in favor of Defendant Florman.

Here, terminating sanctions would have been too drastic a remedy even had the Court not denied the remaining portions of Plaintiff Flores’s motion for containing a defective separate statement.

Plaintiff Flores’s motion is thus DENIED as to terminating sanctions. 

III. Conclusion

Plaintiff Karen Flores’s Motion to Compel Further Responses to Form Interrogatories, Set 1 Sent to Michael Florman and Request for Terminating Sanctions; Issue Sanctions; Evidence Sanctions; and Further Monetary Sanctions in the Amount of $5,947.01 Against Michael Florman and Their Attorney of Record Allyson Thompson is DENIED.