Judge Ashfaq G. Chowdhury, Case Number: 23GDCV00464, Date: 2023-12-01 Tentative Ruling

Judge: Ashfaq G. Chowdhury, Case: 23GDCV00464, Date: 2023-12-01 Tentative Ruling

Case Number: 23GDCV00464 Hearing Date: December 1, 2023 Dept: E

Hearing Date: December 1, 2023

Case No: 23GDCV00464 Trial Date: None

Case Name: Scimeca v. Severo Professional Law Corporation, et al.

(1) MOTION TO COMPEL FURTHER RESPONSES TO PLAINTIFF’S REQUEST FOR ADMISSION (SET ONE); REQUEST FOR MONETARY SANCTIONS

(2) MOTION TO COMPEL FURTHER RESPONSES TO PLAINTIFF’S SPECIAL INTERROGATORIES (SET ONE); REQUEST FOR MONETARY SANCTIONS

(3) MOTION TO COMPEL FURTHER RESPONSES TO PLAINTIFF’S FORM INTERROGATORIES—EMPLOYMENT (SET ONE) AND REQUEST FOR SANCTIONS

(4) MOTION TO COMPEL FURTHER RESPONSES TO PLAINTIFF’S FORM INTERROGATORIES—GENERAL (SET ONE); REQUEST FOR SANCTIONS MONETARY SANCTIONS

Moving Party: Plaintiff Jessica Scimeca

Responding Party: None as of November 29, 2023

Proof of service timely filed (CRC 3.1300(c)): OK

Correct Address (CCP §§ 1013, 1013(a)): OK

16/+2 court day lapse (eservice) (CCP §1005): OK

RELIEF REQUESTED:

Plaintiff moves to compel further responses from Defendant Severo Professional Law Corporation to Plaintiff’s (1) Requests for Admission (Set One); (2) Special Interrogatories (Set One); (3) Form Interrogatories—Employment (Set One); and (4) Form Interrogatories—General (Set One). Plaintiff also asks that the Court impose sanctions in the amount of $4,000/motion against Defendant and/or its counsel.

BACKGROUND:

Plaintiff was employed by Defendant Severo Professional Law (“Severo”) Corporation as a paralegal. Plaintiff alleges Defendant Severo misclassified her as an exempt employee when she was nonexempt. Plaintiff alleges she was forced to work through her meal periods without pay.

Plaintiff alleges her supervisor, Defendant Lawrence LaRocca, approached her for sex multiple times. Plaintiff alleges her supervisor demanded her compliance with his demands in exchange for her continued employment. Plaintiff alleges that, when she informed the officer manager, the office manager essentially told her to search for new employment if she objected to her supervisor’s conduct. Plaintiff alleges the office manager also threatened her with termination of employment in response to her sexual harassment complaints. Plaintiff was terminated from Defendant’s employ on August 18, 2022.

Plaintiff filed a charge of disability discrimination on March 3, 2023. Plaintiff received a right to sue letter within one year of March 8, 2023, the date this action was filed.

On March 8, 2023, Plaintiff filed this action against Defendant Severo. On June 16, 2023, Plaintiff the operative FAC against Defendant Severo and Defendant Lawrence La Rocca (Plaintiff’s supervisor) alleging (1) failure to provide meal periods; (2) failure to provide rest periods; (3) failure to pay all wages owed; (4) failure to provide accurate wage statements; (5) failure to pay waiting time penalties; (6) unfair business practice; (7) sexual harassment in violation of FEHA (quid pro quo); (8) sexual harassment in violation of FEHA (hostile work environment); (9) retaliation in violation of FEHA; (10) whistleblower retaliation in violation of Labor Code §1102.5; (11) failure to prevent harassment and retaliation in violation of FEHA; (12) negligent hiring; (13) negligent supervision and retention; (14) wrongful termination in violation of FEHA; (15) wrongful termination in violation of Public Policy; (16) IIED.

On August 1, 2023, Plaintiff filed Notices of Acknowledgment of Receipt as to Defendants Severo and LaRocca. The Notices of Acknowledgment of Receipt indicated the FAC and summons were mailed to Defendants on July 5, 2023. The Notices were signed by Patrick Martinez of the Law Offices of Patrick D. Martinez. Service was therefore complete on August 1, 2023 per CCP §415.30(c) and a response to the complaint was due on August 31, 2023.

As of November 29, 2023, Defendants have not filed any response to the FAC. However, based on the meet and confer correspondence between the parties, Defendant Severo served discovery on Plaintiff. (Motions to Compel, Grau Dec., ¶5, Exs. A and K.) If in fact Severo served discovery on Plaintiff without challenging this Court’s jurisdiction over it, Defendant Severo has made a general appearance, waiving any objections based on personal jurisdiction. (Factor Health Mgmt. v. Sup.Ct. (Apex Therapeutic Care, Inc. (2005) 132 Cal.App.4th 246, 250, 250; Creed v. Schultz (1983) 148 Cal.App.3d 733, 739-740.)

RECOMMENDED RULING:

Plaintiff’s Motion to Compel Further Responses to Requests for Admission (Set One) is GRANTED.

Plaintiff’s Motion to Compel Further Responses to Special Interrogatories (Set One) is GRANTED.

Plaintiff’s Motion to Compel Further Responses to Form Interrogatories—Employment (Set One) is GRANTED.

Plaintiff’s Motion to Compel Further Responses to Form Interrogatories—General (Set One) is GRANTED.

Defendant Severo is ordered to serve further responses to Plaintiff’s (1) Requests for Admission (Set One); (2) Special Interrogatories; (3) Form Interrogatories—Employment (Set One); and (4) Form Interrogatories—General (Set One). within 20 days.

Plaintiff’s Request for Sanctions against Defendant Severo and Severo’s counsel will be taken up at the hearing.

ANALYSIS:

Legal Standard

CCP §2030.300

(a) On receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that any of the following apply:

(1) An answer to a particular interrogatory is evasive or incomplete.

(2) An exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate.

(3) An objection to an interrogatory is without merit or too general.

(b)(1) A motion under subdivision (a) shall be accompanied by a meet and confer declaration under Section 2016.040.

(2) In lieu of a separate statement required under the California Rules of Court, the court may allow the moving party to submit a concise outline of the discovery request and each response in dispute.

(c) Unless notice of this motion is given within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the propounding party and the responding party have agreed in writing, the propounding party waives any right to compel a further response to the interrogatories.

(d) The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a further response to interrogatories, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.

(e) If a party then fails to obey an order compelling further response to interrogatories, the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under Chapter 7 (commencing with Section 2023.010). In lieu of, or in addition to, that sanction, the court may impose a monetary sanction under Chapter 7 (commencing with Section 2023.010).

CCP §2033.290

(a) On receipt of a response to requests for admissions, the party requesting admissions may move for an order compelling a further response if that party deems that either or both of the following apply:

(1) An answer to a particular request is evasive or incomplete.

(2) An objection to a particular request is without merit or too general.

(b)(1) A motion under subdivision (a) shall be accompanied by a meet and confer declaration under Section 2016.040.

(c) Unless notice of this motion is given within 45 days of the service of the verified response, or any supplemental verified response, or any specific later date to which the requesting party and the responding party have agreed in writing, the requesting party waives any right to compel further response to the requests for admission.

(d) The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further response, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.

(e) If a party then fails to obey an order compelling further response to requests for admission, the court may order that the matters involved in the requests be deemed admitted. In lieu of, or in addition to, this order, the court may impose a monetary sanction under Chapter 7 (commencing with Section 2023.010).

If a timely motion to compel has been filed, the burden is on the responding party to justify any objection or failure to fully answer the interrogatories and RFAs. (Coy v. Sup.Ct. (Wolcher) (1962) 58 Cal.2d 210, 220–221; Fairmont Ins. Co. v. Sup.Ct. (Stendell) (2000) 22 Cal.4th 245, 255.)

Discussion

Notice and Lack of Opposition—Plaintiff filed these four motions to compel further responses on August 9, 2023, and they were set for hearing before Judge Ralph C. Hofer in Department D on December 1, 2023.

On September 12, 2023, Judge Ralph C. Hofer reassigned this matter to this Court and ordered that the motions be heard on December 1, 2023 in this department.

Plaintiff served a copy of the order reassigning the matter and continuing the hearing date on Plaintiff’s motion to compel further in this department on December 1, 2023. (Notice of Case Reassignment filed on October 5, 2023.) Despite notice of these motions to compel further and the reassignment of the case, Defendant Severo has not filed any response to the motions.

Meet and Confer—Plaintiff sufficiently met and conferred on the discovery responses at issue. Plaintiff and Defendant communicated extensively regarding the subject discovery. Plaintiff also served a formal meet-and-confer letter on August 2, 2023, a week before filing this motion. (Motions, Grau Dec., ¶¶16-17, Exs. K and L.) Rather than respond in good faith to the substantive attempt to meet and confer, Defendant continued to argue irrelevant ancillary issues. (Motions, Grau Dec., ¶18, Ex. M.)

Timeline—

May 8, 2023 Plaintiff serves Defendant Severo with the subject discovery (Motions, Grau Dec., ¶4.)
May 31, 2023 Plaintiff grants Defendant Severo an extension to July 5, 2023 to respond to the discovery (Id. at ¶5.)
July 5, 2023 Plaintiff grants Defendant Severo an extension to July 12, 2023 (Id. at ¶9, Ex. E.)
July 12, 2023 Plaintiff grants Defendant Severo an extension to July 17, 2023 (Id. at ¶10.)
July 17, 2023 Defendant Severo claims it served the discovery responses by mail, as confirmed by the POS attached to the discovery responses (Id. at ¶12, Ex. H.)
July 18, 2023 Defendant Severo serves copy of the responses by email on Plaintiff (Id. at ¶¶12 and 13, Exs. H and I.)
August 2, 2023 Plaintiff sends an official meet and confer letter regarding the subject discovery requests and Severo’s responses thereto and requesting supplemental responses by August 8, 2023 (Id. at ¶16, Ex. K.)
August 2, 2023 Defendant response to the meet and confer arguing the request for supplemental responses was an improper quid pro quo/extortion (Id. at ¶18, Ex. M.)
August 2, 2023 Plaintiff responds with a statement that failure to serve supplemental responses by August 8, 2023 would result in motions to compel further (Id. at ¶19, Ex. N.)
August 8, 2023 No supplemental responses are served (Id. at ¶20.)
August 9, 2023 Plaintiff files the instant motions to compel further responses

RFAs, Special Interrogatories, Form Interrogatories (Employment) and Form Interrogatories (General)— If a timely motion to compel has been filed, the burden is on the responding party to justify any objection or failure to fully answer the interrogatories and RFAs. (Coy v. Sup.Ct. (Wolcher) (1962) 58 Cal.2d 210, 220–221; Fairmont Ins. Co. v. Sup.Ct. (Stendell) (2000) 22 Cal.4th 245, 255.)

Defendant Severo asserted boilerplate objections to RFA Nos. 2-4, 6, Special Interrogatories Nos. 1-11, Form Interrogatories (Employment) Nos. 200.1, 200.3-200.5, 209.2, 217.1 and Form Interrogatories (General) Nos. 1.1, 4.1, 12.1-12.7 and 17.1. Based on a review of the discovery, the objections are meritless. Defendant Severo failed to oppose the motions, and they have therefore failed to justify their failure to provide substantive responses.

Plaintiff’s Motions to Compel Further Responses to RFA Nos. 2-4, 6, Special Interrogatories Nos. 1-11, Form Interrogatories (Employment) Nos. 200.1, 200.3-200.5, 209.2, 217.1 and Form Interrogatories (General) Nos. 1.1, 4.1, 12.1-12.7 and 17.1 are GRANTED. Defendant Severo is ordered to serve further responses to RFA Nos. 2-4, 6, Special Interrogatories Nos. 1-11, Form Interrogatories (Employment) Nos. 200.1, 200.3-200.5, 209.2, 217.1 and Form Interrogatories (General) Nos. 1.1, 4.1, 12.1-12.7 and 17.1 within 20 days.

Sanctions—Plaintiff asks that the Court impose sanctions against Severo and/or Severo’s counsel of record in the amount of $4,000 per motion based on 4 hours motion prep, 2 hours separate statement prep, 2 hours reply prep and 2 hours hearing attendance @ $400/hr. The motions largely overlap and Defendant Severo did not oppose them.

The issue of sanctions will be taken up at the hearing.