Judge: Curtis A. Kin, Case: 21STCV19888, Date: 2023-02-07 Tentative Ruling
Case Number: 21STCV19888 Hearing Date: February 7, 2023 Dept: 72
MOTION TO COMPEL FURTHER RESPONSES TO FORM
INTERROGATORIES-GENERAL, SET TWO
MOTION TO BE RELIEVED AS COUNSEL
Date: 2/7/23 (8:30 AM)
Case: Ana Bertha Campos v. Natalia
Granados (21STCV19888)
TENTATIVE RULING:
Plaintiff Ana Bertha Campos’ Motion
for an Order Compelling Further Supplemental Responses to Form
Interrogatories-General, Set Two is GRANTED.
Counsel William R. Bailey and the
Bailey Law Corporation’s Motion to be Relieved as Counsel for defendant Natalia
Granados is CONTINUED.
I.
PLAINTIFF ANA BERTHA CAMPOS’ MOTION FOR AN ORDER
COMPELLING FURTHER SUPPLEMENTAL RESPONSES TO FORM INTERROGATORIES-GENERAL, SET
TWO
Plaintiff Ana Bertha Campos moves to compel a further
response from defendant Natalia Granados to Form Interrogatories, Set Two, No.
15.1 with respect to the second, eighth, tenth, seventeenth, and twentieth
affirmative defenses. Form Interrogatory No. 15.1 asks plaintiff to state all
facts supporting the affirmative defenses asserted in the Answer.
As a preliminary matter, the motion is timely filed. The
responses at issue were served by mail on September 30, 2022 (Josephson Decl. ¶
6 & Ex. B.) Accordingly, the deadline to file the instant motion to compel
further response was November 16, 2022. (CCP §§ 2030.300(c) [notice of motion
to compel to be given 45 days after service of supplemental verified response);
CCP § 1010.6(a)(4)(B) [two court days added for email service of
response].) The motion was timely served and filed on November 16, 2022.
As background, on September 15, 2022, the Court heard a
motion to compel further response to Form Interrogatory No. 15.1. Defendant had
responded that “[d]iscovery has not yet been completed, and the facts upon
which Responding party's affirmative defenses are based have yet to be fully
developed.” (9/15/22 Minute Order at 2.) The Court granted the motion, stating:
“[B]y asserting affirmative defenses, defendant certified that the defenses
‘are warranted by existing law or by a nonfrivolous argument for the extension,
modification, or reversal of existing law or the establishment of new law.’
(CCP § 128.7(b)(2).) Defendant must therefore identify each affirmative defense
and state what facts, even if such facts are meager at this stage of the
proceedings, warranted her assertion of the affirmative defense.” (9/15/22
Minute Order at 2.)
Defendant served further responses on September 30, 2022.
(Josephson Decl. ¶ 6 & Ex. B.) Defendant set forth the following as
supporting all the affirmative defenses:
“Plaintiff
took all of her meal and rest breaks, never worked any overtime, and she was
paid for all of her hours worked, notwithstanding, all these affirmative
defenses were raised in Responding Party's Answer in order to avoid waiver of
said affirmative defenses. California Academy of Sciences
v. County of Fresno (1987) 192 Cal.App.3d 1436, 1442.
Further, those affirmative defenses were pled in order to protect Responding
Party's affirmative defenses in the event discovery and investigation reveal a
basis for them. Discovery has not yet been completed, and the facts upon which
Responding party's affirmative defenses are based have yet to be fully
developed.”
(Josephson Decl. ¶ 6
& Ex. B.) In sum, aside from
reasserting that the affirmative defenses were raised to avoid any waiver and
that facts supporting the affirmative defenses may be ascertained in discovery,
plaintiff newly asserts that she “took all of her meal and rest breaks,
never worked any overtime, and she was paid for all of her hours worked….” (Josephson
Decl. ¶ 6 & Ex. B.)
Defendant claims that plaintiff did not adequately meet and
confer before filing this motion. The Court disagrees. On October 7, 2022,
plaintiff sent defendant a meet and confer letter setting forth her position
that “[m]erely stating that Plaintiff took all her meal and rest breaks, never
worked any overtime and was paid for all hours worked is not ‘all facts’.”
(Josephson Decl. ¶ 10 & Ex. C.) Plaintiff also stated that defendant’s
inclusion of affirmative defenses to avoid waiver is nonresponsive to Form
Interrogatory No. 15.1 because the interrogatory does not ask why the
affirmative responses were included. On October 8, 2022, defendant rejected
plaintiff’s assertions, stating that the Court faulted defendant for not
including any facts, even if such facts were meager, and that now defendant
included facts. (Josephson Decl. ¶ 11 & Ex. D.) On November 4, 2022,
plaintiff stated that the facts that defendant added do not relate to the
second, eighth, tenth, seventeenth, or twentieth affirmative defenses. (Josephson
Decl. ¶ 13 & Ex. E.) On November 12, 2022, defendant responded by rejecting
plaintiff’s position, arguing that plaintiff was making a factual argument, not
a legal one. (Josephson Decl. ¶ 14 & Ex. F.)
Based on defendant’s response to plaintiff’s meet and confer
letters and refusal to provide further responses, plaintiff’s meet and confer
effort was sufficient. Indeed, “[a] single letter, followed by a response which
refuses concessions, might in some instances be an adequate attempt at informal
resolution, especially when a legitimate discovery objective is demonstrated.”
(Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 432.) Defendant’s
insistence that the further responses were adequate demonstrated that any
further effort from plaintiff to persuade defendant to serve further responses
would have been futile.
Plaintiff maintains that the responses defendant served on
September 30, 2022 are not responsive to the five affirmative defenses at issue
in the instant motion. With this, the
Court agrees.
The second affirmative defense states: “Plaintiff's claims
are barred, in whole or in part, by the doctrines of waiver, estoppel,
applicable statutes of limitations[,] laches, and/or unclean hands.”
With respect to waiver, it “is the intentional
relinquishment of a known right after full knowledge of the facts and depends
upon the intention of one party only.” (DRG/Beverly Hills, Ltd. v. Chopstix
Dim Sum Cafe & Takeout III, Ltd. (1994) 30 Cal.App.4th 54, 59.) The
further response does not address plaintiff’s knowledge of defendant’s
obligations to provide her breaks and pay her overtime and for all hours
worked. The further response also does not address whether plaintiff
intentionally relinquished her right to receive the breaks and payment
referenced in the defense.
With respect to estoppel, it “is applicable where the
conduct of one side has induced the other to take such a position that it would
be injured if the first should be permitted to repudiate its acts.” (DRG/Beverly
Hills, Ltd. v. Chopstix Dim Sum Cafe & Takeout III, Ltd. (1994) 30
Cal.App.4th 54, 59.) The further response does not assert any conduct from
defendant that caused plaintiff to act to her detriment.
With respect to statutes of limitations, “[c]ivil statutes
of limitations protect defendants from the necessity of defending stale claims
and require plaintiffs to pursue their claims diligently.” (Romano v.
Rockwell Internat., Inc. (1996) 14 Cal.4th 479, 488.) The further response
does not reference any applicable limitations period within which plaintiff
purportedly failed to commence this action.
With respect to laches, it is a defense when the statutory
time of limitation has not run, but there is a showing of facts amounting to
acquiescence in the acts complained of, in addition to mere passive neglect, or
other circumstances which, coupled with delay, render the granting of relief
inequitable by a court of equity. (Neet
v. Holmes (1944) 25 Cal.2d 447, 460.) The further response does not allege
any delay from plaintiff in seeking to enforce her rights or any injury caused
by the delay. (Gibson v. Mitchell (1937) 9 Cal.2d 718, 725-26 [“Laches
is dependent not only upon delay, but also upon injury occasioned by the
delay”].)
With respect to unclean hands, “‘[t]he [unclean hands] rule
is settled in California that whenever a party who, as actor, seeks to set
judicial machinery in motion and obtain some remedy, has violated
conscience, good faith or other equitable principle in his prior conduct,
then…the court will refuse to interfere on his behalf to acknowledge his right,
or to afford him any remedy.’ ” (Pond v. Insurance Co. of North America (1984)
151 Cal.App.3d 280, 289-90, quoting Moriarty v. Carlson (1960) 184
Cal.App.2d 51, 55.) The further response does not allege any conduct from
plaintiff that violates conscience, good faith, or other equitable principle.
The eighth affirmative defense states: “If Plaintiff has
suffered any damages, such damages were proximately caused by factors other
than the actions of Defendant or anyone acting on her behalf.” “‘A superseding
cause is an act of a third person or other force which by its intervention
prevents the actor from being liable for harm to another which his antecedent
negligence is a substantial factor in bringing about.’ If the cause is
superseding, it relieves the actor from liability whether or not that person's
negligence was a substantial factor in bringing about the harm.” (Brewer v.
Teano (1995) 40 Cal.App.4th 1024, 1031, internal citations omitted.) The
further response does not reference any act of a person other than defendant or
anyone acting on defendant’s behalf which could possibly relieve defendant of
liability.
The tenth affirmative defense states: “Without admitting
that Plaintiff is entitled to any recovery, Defendant alleges that any recovery
to which Plaintiff might be entitled must be reduced because of Plaintiff's
failure to mitigate her damages, if any.” “Typically, the rule of mitigation of
damages comes into play when the event producing injury or damage has already
occurred and it then has become the obligation of the injured or damaged party
to avoid continuing or enhanced damages through reasonable efforts.” (Valle
de Oro Bank v. Gamboa (1994) 26 Cal.App.4th 1686, 1691.) The further
response does not contain any allegation concerning how plaintiff failed to
avoid continuing damages.
The seventeenth affirmative defense states: “Plaintiff’s
Complaint is barred because Plaintiff failed to exhaust Plaintiff’s
administrative remedies, the allegations in the Complaint fall outside the
scope of any administrative charges Plaintiff filed and/or Plaintiff otherwise
failed to comply with the statutory prerequisites to the bringing of this
action, pursuant to the FEHA, California Government Code section 12900 et seq.”
The further response contains no allegations regarding how plaintiff failed to
exhaust any administrative remedies or comply with statutory requirements prior
to commencing this action. The further response also does not allege how the
Complaint exceeds the scope of any administrative charges that plaintiff filed.
The twentieth affirmative defense states: “Defendant alleges
that Plaintiff’s claims are barred by Plaintiff’s own breaches of duty owed to
Defendant including but not limited to those set forth in California Labor Code
sections 2854, 2856- 2859.” The further response does not set forth any duties
that plaintiff purportedly owed to defendant or how plaintiff breached such
duty.
Because the further responses served by defendant on
September 30, 2022 do not address the second, eighth, tenth, seventeenth, or
twentieth affirmative defenses, the further responses are evasive and
incomplete. (See CCP § 2030.300(a)(1).) Defendant appears to argue that
the further responses were as complete and straightforward as the reasonably
available information permits. (Opp. at 4:2-6 [“Plaintiff mischaracterizes a
portion of the response providing explanatory language as an improper objection
even though the Form Interrogatories [Page 1, Sec 3(c)] provides that answers
should be as complete as the information available permits”].) Form
Interrogatory 15.1(a) asks defendant to “state all facts upon which you base
the denial or special or affirmative defense.” Defendant does not state all
facts supporting the affirmative defenses at issue in the instant motion by
avoiding the substance of the affirmative defense. If defendant does not have
any supporting facts for the second, eighth, tenth, seventeenth, and twentieth
affirmative defenses, defendant should state that she has no supporting facts
in verified further responses. (See CCP § 2030.220(a) [“Each answer in a
response to interrogatories shall be as complete and straightforward as the
information reasonably available to the responding party permits”].)
For the foregoing reasons, further responses are required to
Form Interrogatories, Set Two, No. 15.1, with respect to the second, eighth,
tenth, seventeenth, and twentieth affirmative defenses.
Plaintiff also requests issue or evidentiary sanctions.
Plaintiff does not set forth how such sanctions should be phrased. In any
event, given the defects set forth above could be easily remedied, the Court
gives defendant an additional opportunity to serve further Code-compliant
responses. Any failure to comply with this order may subject defendant to
further escalating sanctions.
The motion is GRANTED IN PART. Within fifteen (15) days
hereof, defendant Natalia Granados is ordered to provide further verified
responses, without objection, to Form Interrogatories-General, Set Two, No.
15.1 with respect to the second, eighth, tenth, seventeenth, and twentieth
affirmative defenses asserted in the Answer in accordance with this ruling.
For opposing this motion without substantial justification,
thereby forcing plaintiff to file the instant motion, the Court imposes
monetary sanctions against defendant Natalia Granados and counsel of record,
jointly and severally, in the amount of $3,150. This amount is based on 1.5
hours to draft meet and confer letters, three hours to draft the moving papers,
one hour to review the opposition and draft the reply, and 0.5 hours to prepare
for and attend the hearing on the instant motion (instead of the total 10 hours
claimed by counsel for plaintiff), at an hourly rate of $525. Such monetary
sanctions shall be paid to counsel for plaintiff within thirty (30) days
hereof.
II.
COUNSEL WILLIAM R. BAILEY AND THE BAILEY LAW
CORPORATION’S MOTION TO BE RELIEVED AS COUNSEL
Counsel William R. Bailey and the Bailey Law Corporation’s
Motion to be Relieved as Counsel for defendant Natalia Granados is CONTINUED to
February 28, 2023, at 8:30 a.m., in Department 72 (Stanley Mosk Courthouse).
The stated reason for seeking withdrawal is sufficient. (Estate
of Falco (1987) 188 Cal.App.3d 1004, 1014 [breakdown in attorney-client
relationship].)
However, this motion was continued on January 19, 2023. The
Court ordered counsel for defendant to provide notice to defendant Natalia
Granados. The Court file does not reflect that notice of the continuance of
this hearing was provided to defendant.
In addition, counsel for defendant did not serve an amended
proposed order, as ordered by the Court on January 19, 2023. Within five (5)
court days hereof, defense counsel is ordered to serve and file an amended
Judicial Council Form MC-053 proposed order that contains: (1) defendant
Natalia Granados’ current address and telephone number in item 6; (2) the information
about the next scheduled hearing requested in items 7a and 7b (i.e., the March
14, 2023 hearing on the motion for sanctions); (3) the information about the
additional hearing set in this action (i.e., July 14, 2023 Final Status
Conference) requested in item 8; and (4) the date, time, and place of the trial
in item 9b.
Counsel for defendant is directed to provide notice to
defendant and file the notice with the Court at least five (5) court days prior
to the continued hearing date.