Judge David S. Cunningham, Case BC706908 2023-01-12 Tentative Ruling

Judge: David S. Cunningham, Case: BC706908, Date: 2023-01-12 Tentative Ruling

Case Number: BC706908 Hearing Date: January 12, 2023 Dept: 11

BC706908 (Cortez)

Tentative Ruling Re: Motion to Compel Further Responses

to Special Interrogatories (Set Three)

Date: 1/12/23

Time: 11:00 am

Moving Party: Carmelina Ortiz Cortez (“Plaintiff”)

Opposing Party: Jenin Home Fashion, Inc. (“Fashion”), Jenin Home Furnishing, Inc., and Eyad Jebarah (collectively “Defendants”)

Department: 11

Judge: David S. Cunningham III

________________________________________________________________________

TENTATIVE RULING

Plaintiff’s motion to compel further responses is granted.

Plaintiff’s request for monetary sanctions is denied without prejudice.

BACKGROUND

This is a “wage and hour” case. Plaintiff claims Defendants failed to pay all earned wages, pay wages on time, provide meal breaks, provide rest breaks, provide accurate wage statements, and reimburse work expenses. She alleges that Defendants jointly employed her, and she seeks to represent a class of similar current and former hourly, non-exempt California employees.

Here, Plaintiff moves to compel Fashion to provide further responses to special interrogatories (set three), requests 7 and 8.

DISCUSSION

Fashion served further responses to requests 7 and 8 on 12/29/22, so Defendants contend the motion is moot.

Defendants filed the opposition brief one court day late on 12/30/22, so Plaintiff contends the opposition brief should be disregarded.

Because this is an ongoing discovery dispute, the efficient approach is to reach the merits. The Court finds that the further responses and the opposition brief should be considered.

Turning to the special interrogatories, request 7 states:

Please IDENTIFY who has paid the premiums for YOUR workers’ compensation policy DURING THE RELEVANT TIME PERIOD.

For purposes of this interrogatory, the term “IDENTIFY” shall mean when used in reference to a natural person or persons, to state separately: (1) The full name of each such person; (2) His or her present or last known business address, his or her present or last known mailing address, his or her present or last known residential address, and his or her last known email address; (3) His or her present or last known work telephone number, his or her present or last known residential telephone number, and his or her present or last known mobile telephone number; and (4) His or her present or last known personal email address.

For purposes of this interrogatory, the terms “YOU,” “YOUR” or “JENIN HOME FASHION INC.” shall mean Defendant JENIN HOME FASHION INC., a California corporation, and its servants, agents, officers, directors, affiliates, predecessors, representatives, divisions, attorneys, successors in interest, parents, divisions, subsidiaries, area and regional offices and employees, including entities and offices outside of the United States, and anyone else acting on its behalf.

For purposes of this interrogatory, the phrase “DURING THE RELEVANT TIME PERIOD” shall mean the time period beginning May 21, 2014 and ending on the present date.

(Plaintiff’s Separate Statement, p. 3.)

Fashion’s initial response provides:

OBJECTION: Asked and Answered. This discovery request has, in substance, been previously propounded. (See Plaintiff’s Special Interrogatory No. 5.) Continuous discovery into the same matter constitutes oppression, and Responding Party further objects on that ground. (Professional Career Colleges v. Superior Ct. (1989) 207 Cal.App.3d 490, 493-494.)

Responding Party previously provided its response to this interrogatory on September 8, 2021; and provided further responses on May 11, 2022. Plaintiff has already attempted to file a motion to compel on the substance of Special Interrogatory No. 5, and pursuant to an Informal Discovery Conference with the Court, agreed to withdraw her motion regarding the same. In fact, on July 11, 2022, Plaintiff withdrew her motion to compel on Special Interrogatory No. 5 because the discovery dispute was moot. Given this interrogatory constitutes an impermissible continuous discovery request, to which Responding Party has already twice provided fact specific responses, a response to this request is neither necessary nor warranted.

(Id. at pp. 3-4.)

The further response provides:

For the information being sought for the identified time period, for the period of May 21, 2014 to February 2020, Responding Party cannot confirm or deny whether Jenin Home Fashion, Inc. had worker's compensation insurance. Responding Party, therefore, does not know who, if anyone, paid for worker's compensation insurance during that period. Responding Party has conducted a diligent and exhaustive search and reasonable inquiry into this subject matter, which included communicating with its previous accountant and other professionals, and reviewing documents provided by the same (which have already been produced in discovery) and which documents have been in the possession of Plaintiff's counsel. Furthermore, Plaintiff's counsel has been in contact with Responding Party former accountant/bookkeeper, Irit Selko and Selko Financial Services, who was deposed on June 28, 2022, and provided documents and information during and/or subsequent to said deposition taken by Plaintiff's counsel.

Additionally, as Responding Party has previously and repeatedly informed Plaintiffs counsel, Jenin Home Fashion's previous owner and corporate officer, Khalid Shalabi, did not leave any documents or information for Responding Party which disclosed whether said entity had worker's compensation insurance prior to February 2020, and, if it had such information, who paid the premiums for the same. As Plaintiff's counsel is aware and as Responding Party has repeatedly informed Plaintiff's counsel, during this time period, Mr. Shalabi managed, oversaw, and controlled all aspects of Jenin Home Fashion, operational, financial and otherwise. Responding Party is aware and informed that Plaintiff's counsel has also had repeated contact with Mr. Shalabi and have communicated with him regarding his deposition for well over the past year.

With respect to the time period of February 2020 to present, as Responding Party has repeatedly advised Plaintiff's counsel, Responding Party did not have any worker's comp insurance because Responding Party did not have any employees. Responding Party, therefore, did not need to carry worker's comp insurance and ergo did not pay for such insurance.

(Defendants’ Separate Statement, p. 3.)

Request 8 states:

Please IDENTIFY YOUR workers’ compensation policy number(s) DURING THE RELEVANT TIME PERIOD.

For purposes of this interrogatory, the phrase “DURING THE RELEVANT TIME PERIOD” shall mean the time period beginning May 21, 2014 and ending on the present date.

(Plaintiff’s Separate Statement, p. 5.)

The initial response states:

OBJECTION: Asked and Answered. This discovery request has, in substance, been previously propounded. (See Plaintiff’s Special Interrogatory No. 6.) Continuous discovery into the same matter constitutes oppression, and Responding Party further objects on that ground. (Professional Career Colleges v. Superior Ct. (1989) 207 Cal.App.3d 490, 493-494.)

Responding Party previously provided its response to this interrogatory on September 8, 2021; and provided further responses on May 11, 2022. Plaintiff has already attempted to file a motion to compel on the substance of Special Interrogatory No. 5, and pursuant to an Informal Discovery Conference with the Court, agreed to withdraw her motion regarding the same. In fact, on July 11, 2022, Plaintiff withdrew her motion to compel on Special Interrogatory No. 6 because the discovery dispute was moot. Given this interrogatory constitutes an impermissible continuous discovery request, to which Responding Party has already twice provided fact specific responses, a response to this request is neither necessary nor warranted.

(Id. at pp. 5-6.)

Fashion’s further response provides:

For the information being sought for the identified time period, for the period of May 21, 2014 to February 2020, Responding Party cannot confirm or deny whether Jenin Home Fashion, Inc. had worker's compensation insurance. Responding Party, therefore, does not know what may have been the workers' compensation policy number(s), if any existed for worker's compensation insurance during that period. Responding Party has conducted a diligent and exhaustive search and reasonable inquiry into this subject matter, which included communicating with its previous accountant and other professionals, and reviewing documents provided by the same (which have already been produced in discovery) and which documents have been in the possession of Plaintiff's counsel. Furthermore, Plaintiff's counsel has been in contact with Responding Party former accountant/bookkeeper, Irit Selko and Selko Financial Services, who was deposed on June 28, 2022, and provided documents and information during and/or subsequent to said deposition taken by Plaintiffs counsel.

Additionally, as Responding Party has previously and repeatedly informed Plaintiff's counsel, Jenin Home Fashion's previous owner and corporate officer, Khalid Shalabi, did not leave any documents or information for Responding Party which disclosed whether said entity had worker's compensation insurance prior to February 2020, and, if it had such information, what were the policy number(s) for the same. As Plaintiff's counsel is aware and as Responding Party has repeatedly informed Plaintiff's counsel, during this time period, Mr. Shalabi managed, oversaw, and controlled all aspects of Jenin Home Fashion, operational, financial and otherwise. Responding Party is aware and informed that Plaintiff's counsel has also had repeated contact with Mr. Shalabi and have communicated with him regarding his deposition for well over the past year.

(Defendants’ Separate Statement, pp. 6-7.)

Plaintiff contends the further responses are false and inadequate:

In its responses, Defendant alleges that it cannot confirm whether Fashion had worker’s compensation insurance prior to February 2020. [Citation.] It also states that Fashion’s previous owner “did not leave any documents or information for Responding Party which disclosed whether said entity had worker’s compensation insurance prior to February 2020.” These statements are clearly false and intended to deceit the Court. According to the documents produced by Defendants, [citation], Fashion is in possession of documents that clearly identify at least one worker’s compensation insurance during the relevant time period. Defendant conveniently tends to ignore documents in its possession to avoid discovery.

Defendant’s responses also state that Defendant “has conducted a diligent and exhaustive search and reasonable inquiry into this subject matter, which included communicating with its previous accountant and other professionals.” Based on this response, it is clear that Defendant has not conducted a reasonable inquiry. Defendant conveniently failed to contact State Farm, the insurance company identified in Exhibit B to inquire about the requested information. As Plaintiff has argued many times, as the current owner of Fashion, Mr. Jebarah has the ability to contact the insurance company and obtain the requested information. His failure to do so is telling.

(Reply, p. 2.)

Responses to interrogatories “may consist either of answers, objections, or election to allow inspection and copying of records.” (Edmon & Karnow, Cal. Prac. Guide: Civ. Proc. Before Trial (The Rutter Guide June 2022 Update) ¶ 8:1046 [citing Code of Civil Procedure section 2030.210(a)].)

“Each answer in the response must be ‘as complete and straightforward as the information reasonably available to the responding party permits. If an interrogatory cannot be answered completely, it shall be answered to the extent possible.’” (Id. at ¶ 8:1047 [quoting Code of Civil Procedure section 2030.220(a)-(b)], emphasis in original.)

“A response stating ‘inability to respond’ is legally insufficient.” (Id. at ¶ 8:1023.) “If the responding party does not have personal knowledge sufficient to respond fully to an interrogatory, that party shall so state, but shall make a reasonable and good faith effort to obtain the information by inquiry to other natural persons or organizations, except where the information is equally available to the propounding party.” (Id. at ¶ 8:1051 [quoting Code of Civil Procedure section 2030.220(c)], emphasis in original; see also id. at ¶ 8:1023 [permitting the responding party to state that he or she lacks personal knowledge, “but only after making a reasonable and good faith effort to obtain the information by inquiry to other persons or organizations”], emphasis in original.)

Based on these rules, the motion is granted. The further responses mention Irit Selko, Selko Financial Services, and Khalid Shalabi. It also appears from Fashion’s own documents that State Farm handled at least one workers’ compensation claim during the relevant time period. (See Supp. Tahmassian Decl., Exh. B.) Did Selko and Selko Financial Services identify responsive information when Fashion contacted them? Did Fashion reach out to Shalabi and State Farm to see if they have responsive information? Fashion needs to serve amended responses that answer these questions to satisfy the Code.

Plaintiff’s request for monetary sanctions is denied without prejudice. The Court grants Plaintiff leave to remake the request if Fashion fails to submit compliant amended responses.