Judge: David S. Cunningham, Case: 23STCV24368, Date: 2024-09-16 Tentative Ruling


Case Number: 23STCV24368    Hearing Date: September 16, 2024    Dept: 11

23STCV24368 (Garcia)

Tentative Ruling Re: Motion to Compel and Motion for Monetary Sanctions

 

Date:                           9/16/24

Time:                          10:00 am

Moving Party:           Rocio Garcia, et al. (collectively “Plaintiffs”)

Opposing Party:        None

Department:              11

Judge:                        David S. Cunningham III

________________________________________________________________________

 

TENTATIVE RULING

 

Plaintiff’s motion to compel is granted.

 

Plaintiff’s motion for monetary sanctions is granted.

 

BACKGROUND

 

This is a putative class action.  Eagle Access Control Systems, Inc. (“Eagle Access” or “Defendant”) is a company that manufactures gate-operating systems.  (See Complaint, ¶ 8.)  Plaintiff used to work for Eagle Access.  She alleges that Eagle Access subjected her and other current and former employees to numerous wage-and-hour violations.

 

Two motions are at issue here.  The first is Plaintiffs’ motion to compel Eagle Access to produce the putative class members’ timecards and wage statements and to identify the number of putative class members.  The second is Plaintiffs’ motion for monetary sanctions against Eagle Access and Eagle Access’s attorney, Gary Schwartz.

 

DISCUSSION

 

The extensive history of this discovery dispute is detailed in Plaintiff’s counsel’s declaration. The declaration states:

 

3. On January 11, 2024, the Court held an initial status conference. At the time, the parties agreed to provide initial disclosures pursuant to Code of Civil Procedure section 2016.090, including the putative Class members' wage statements and timecards. These initial disclosures were due on February 26, 2024. I sent a confirming email to Defendant’s counsel, Gary Schwartz, the same day as the initial status conference. I emailed Mr. Schwartz again on February 5, 2024, reminding him of the deadline. He did not respond. Attached hereto as Exhibit A is a true and correct copy of our email exchange.

 

4. I emailed Mr. Schwartz another reminder on February 10, 2024. He did not respond. Attached hereto as Exhibit B is a true and correct copy of our email exchange.

 

5. Defendant failed to timely produce the Initial Disclosures. Accordingly, after repeated emails, I was able to schedule a call with Mr. Schwartz on February 29, 2024. During the call, Mr. Schwartz agreed that he would work with his client to produce the outstanding Initial Disclosures. I sent Mr. Schwartz a confirming email that same day. Attached hereto as Exhibit C is a true and correct copy of our email exchange.

 

6. On March 9, 2024, I emailed Mr. Schwartz following up as I still had not received Defendants’ initial disclosures. Among other things, I needed these documents to prepare for a mediation the parties had scheduled that month. Mr. Schwartz did not respond. Accordingly, I emailed him again on March 12, 2024, attempting to follow up. He did not respond. On March 15, 2024, I emailed Mr. Schwarts, again, attempting to follow up. He did not respond. On March 18, 2024, I emailed Mr. Schwartz, again, attempting to follow up. I explained that I was not getting responses to emails, Defendant had still not produced Initial Disclosures, and I would be cancelling the mediation as a result. Attached hereto as Exhibit D is a true and correct copy of our email exchange.

 

7. On March 27, 2024, I sent Mr. Schwartz another email, asking him “When will you be producing the putative class members' timecards and payroll records?” He did not respond. On April 1, 2024, I sent Mr. Schwartz an email giving him an ultimatum to either provide a date by which Defendant would produce the outstanding Initial Disclosures or to provide his dates of availability with the Court for an informal discovery conference. He did not respond. Attached hereto as Exhibit E is a true and correct copy of our email exchange. Attached hereto as Exhibit E is a true and correct copy of our email exchange.

 

8. On April 3, 2024, I called Mr. Schwartz attempting to follow up. He claimed he had just received the documents from his client and would be overnighting them to me.

 

9. On April 10, 2024, I received a flash drive from Mr. Schwartz containing partial production of the Initial Disclosures. The Initial Disclosures were limited to timecards for calendar years 2020 and 2022. Defendant failed to produce (1) the Class members’ wage statements from September 23, 2022 – present; (2) the Class members’ timecards from January 2023 – present. Defendant also claimed that Class Members’ timecards for 2019 and their wage statements for 2021 were “lost in flood.”

 

10. The following day I emailed Mr. Schwartz attempting to meet and confer on the outstanding Initial Disclosures other than those records that were purportedly lost in a flood. He did not respond and so I emailed him several more times that week. Attached hereto as Exhibit Fis a true and correct copy of our email exchange.

 

11. On April 22, 2024, I emailed Mr. Schwartz and advised him I would need to request the Court’s intervention if he did not respond. (Ex. F.) I subsequently posted a message on Case Anywhere asking for the Court’s assistance.

 

12. On May 13, 2024, I received a call from the Court’s clerk, asking me to provide dates for an informal discovery conference. I emailed Mr. Schwartz the same day asking him for dates that he was available. He did not respond. Accordingly, I emailed Mr. Schwartz, again, on May 15, 21024, attempting to follow up. He did not respond. Attached hereto as Exhibit G is a true and correct copy of our email exchange.

 

13. On May 27, 2024, I sent Mr. Schwartz a joint discovery statement that I planned to file with the Court in advance of the requested informal discovery conference. I asked Mr. Schwartz to add Defendant’s portion. He did not respond. On May 31, 2024, I emailed Mr. Schwartz attempting to follow up on the joint discovery statement. He did not respond. Attached hereto as Exhibit H is a true and correct copy of our email exchange.

 

14. On June 4, 2024, the Court held an informal discovery conference at Plaintiff’s request. Defendant failed to appear, and the Court rescheduled the discovery conference for July 11, 2024, and set an Order to Show Cause Hearing for Defendant’s failure to appear for the same date.

 

15. On June 10, 2024, I sent Mr. Schwartz an email letting him know that I was cancelling the rescheduled mediation because he was not responding to emails and had not produced the outstanding initial disclosures. Attached hereto as Exhibit I is a true and correct copy of our email exchange.

 

16. On July 11, 2024, the parties attended an informal discovery conference. Mr. Schwartz indicated that his failure to appear at the last discovery conference was due to a calendaring mistake. The Court did not award sanctions. The Court asked Mr. Schwartz if he had abandoned the case. Mr. Schwartz indicated he had not and had just been “overwhelmed.” The Court urged Mr. Schwartz to provide the outstanding Initial Disclosures and gave Plaintiff leave to file a Motion to Compel and Motion for Sanctions on before August 12, 2024.

 

17. That same day, I emailed Mr. Schwartz asking him to produce the outstanding Initial Disclosures by July 21, 2024, or I would be forced to file Motions to Compel and for Sanctions. Attached hereto as Exhibit J is a true and correct copy of our email exchange.

 

18. I subsequently received a flash drive from Mr. Schwartz. Unfortunately, the flash drive contained the same limited documents that Defendant produced on April 10, 2024. No new documents were produced. I emailed Mr. Schwartz on July 20, 2024, to advise him. Mr. Schwartz responded indicating he would be obtaining another flash drive from his client on or before July 26, 2024, and would send it to me. I asked Mr. Schwartz to review the flash drive to make sure it contained the outstanding documents before sending. Attached hereto as Exhibit k is a true and correct copy of our email exchange.

 

19. On August 4, 2024, I received another flash drive from Mr. Schwartz. The flash drive contained (1) the Class members’ timecards from January – May 2024, and (2) quarterly “Wage and Tax Register Reports” from January 2019 – May 2023. These quarterly Wage and Tax Register Reports only provide the total wages paid to the Class members during the respective quarter and are largely not helpful in resolving the underlying wage and hour claims.

 

20. In addition, the flash drive contained a document entitled “Document Destruction Log.” The log indicates that “2023 Payroll” were damaged in a flood on March 13, 2024, and were destroyed. Significantly, Mr. Schwartz never disclosed to me or the Court during the last six months of meeting and conferring or at the informal discovery conference that these documents has been purportedly “destroyed.” Moreover, these documents were allegedly “destroyed” on March 13, 2024, two weeks after Defendant was required to produce them as part of its Initial Disclosures.

 

21. On August 6, 2024, I emailed Mr. Schwartz inquiring: (1) why he had not disclosed to me or the Court that the Class members’ 2023 timecards and wage statements were destroyed until August 4, 2024, despite the numerous meet and confer communications and two IDCs; and (2) whether Defendant had attempted to obtain the “destroyed” records from Defendant’s payroll provider, ADP. In response, Mr. Scwartz indicated he was unaware the that the 2023 records had been destroyed and Defendant had not contacted ADP. Mr. Schwartz indicated he would check with ADP. A true and correct copy of our email exchange is attached hereto as Exhibit __. To date, I have not received any further communications from Mr. Scwartz regarding Defendant’s efforts to obtain the destroyed documents from ADP. Attached hereto as Exhibit L is a true and correct copy of our email exchange.

 

22. In addition to the foregoing, Defendant has misrepresented and continues to misrepresent the total number of the putative Class members. Defendant represented in the parties Joint Case Management Statement that there were only 16 Class members. I have repeatedly advised Mr. Schwartz that this information is inaccurate and have asked him to confirm with his client. Among other things, I have explained to Mr. Schwartz that his client is only providing the number of current non-exempt employees rather than all non-exempt employees who were employed at any time during the Class Period. Defendant has nevertheless continued to stand by this number. A true and correct copy of my emails with Mr. Schwartz regarding this issue are attached as Exhibit M.

 

23. Defendants’ partial Initial Disclosures reveal that Defendant had at least 44 putative Class members. This number does not include any employees who worked for Defendant after January 1, 2023, for which Defendant has not produced records.

 

(Jones Decl. Re: Motion to Compel, ¶¶ 3-23.)

 

Given these uncontested statements, the Court finds that both motions should be granted. The requested discovery is standard certification discovery; Defendant failed to make full production of the documents and information on multiple occasions, even after the July 11th discovery conference with the Court; defense counsel repeatedly failed to respond to Plaintiff’s counsel’s meet-and-confer communications; and Defendant did not oppose the motions.  These facts render both motions meritorious.

 

At the September 16th hearing, the Court intends to set a date certain for production and to order Defendant and defense counsel to pay $10,795.00 to Plaintiff.  (See id. at ¶¶ 27-29.)