Judge Deirdre Hill, Case 22TRCV01130 2023-03-27 Tentative Ruling

ALERT

Due to Coronavirus, please consider appearing by phone for Department M cases.

Department M strongly encourages the use of LA CourtConnect* for ALL hearings, without need for prior approval, unless live testimony by a witness is required.

The contact information for LA CourtConnect* is:

https://lacourt.portalscloud.com/VCourt/

*Parties with a fee waiver on file may be eligible to appear at no/reduced cost

(1) Motion to Compel Further Responses to Interrogatories (Form – Employment and Special), Set One

(2) Motion to Compel Further Responses to Requests for Production, Set One

Defendant Kaleo Marketing, LLC is ordered to serve further responses to plaintiff’s Form Interrogatories – Employment, Nos. 200.1-6, 201.1-7, 207.1-2, 208.1-.2, 209.2, 211.1-3, 214.1-2, 215.1-2, 216.1 and Special Interrogatories, Nos. 1-62, within 10 days.

Defendant Kaleo Marketing, LLC is ordered to serve further responses and to produce responsive documents to plaintiff’s Request for Production of Documents, Nos. 1-51, within 10 days.

The court orders defendant Kaleo Marketing and attorneys Mojajerian PLC and Al Mohajerian to pay sanctions to plaintiff in the amount of $3,338 within 30 days in total for both motions.

On November 7, 2022, plaintiff Brittany Harman filed a complaint against Kaleo Marketing, LLC and Michael Oberlander for (1) pregnancy discrimination, (2) retaliation for taking pregnancy leave, (3) violation of Family Rights Act, (4) violation of pregnancy disability leave, (5) disability discrimination, (6) failure to engage in a good faith interactive process, (7) failure to provide reasonable accommodations, (8) retaliation for reasonable complaint to employer, and (9) wrongful termination in violation of public policy.

On February 23, 2023, the court sustained with leave to amend plaintiff’s demurrer to the FAA.

45-Day Rule: This motion must be served within 45 days after service of the response in question (extended if served by mail, overnight delivery, or fax; see CCP §1013); otherwise, the demanding party waives the right to compel any further response to the CCP §2031.010 demand. CCP §§2031.310(c), 2016.050; see Sperber v. Robinson (1994) 26 Cal. App. 4th 736, 745. The 45-day time limit is mandatory and jurisdictional. Sexton v. Superior Court (1997) 58 Cal. App. 4th 1403, 1410. The parties, however, can also agree in writing on a specific later date by which to file the motion to compel. CCP §2031.310(c).

Meet-and-Confer Requirement: The motion to compel further responses must be accompanied by a declaration showing “a reasonable and good faith attempt” to resolve the issues outside of court (so-called “meet and confer”). CCP §§2016.040, 2031.310(b)(2).

Separate Statement: Any motion involving the content of a discovery request or the responses to such a request shall be accompanied by a separate statement. This includes a motion to compel further responses to demand for inspection of documents or tangible things. CRC Rule 3.1020(a)(3).

CCP §2030.300 states: “(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. . . . (3) An objection to an interrogatory is without merit or too general. (b) 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 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. . . .”

On receipt of a response to an inspection demand, the demanding party may move for an order compelling further responses to the demand if the demanding party deems that any of the following apply: (1) a statement of compliance with the demand is incomplete; (2) a representation of inability to comply is inadequate, incomplete, or evasive; or (3) an objection in the response is without merit or too general. CCP §2031.310(a). A statement of compliance shall state that the production, inspection, and related activity demanded will be allowed either in whole or in part, and that all documents or things in the demanded category that are in the possession, custody, or control of that party and to which no objection is being made will be included in the production. CCP §2031.220. “A representation of inability to comply with [a] particular demand for inspection . . . shall affirm that a diligent search and reasonable inquiry has been made in an effort to comply with that demand. This statement shall also specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party. This statement shall set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item.” CCP §2031.230.

A motion to compel further response to requests for production “shall set forth specific facts showing good cause justifying the discovery sought by the inspection demand.” CCP § 2031.310(b)(1). “To establish ‘good cause,’ the burden is on the moving party to show both: [1] Relevance to the subject matter (e.g., how the information in the documents would tend to prove or disprove some issue in the case); and [2] Specific facts justifying discovery (e.g., why such information is necessary for trial preparation or to prevent surprise at trial). The fact that there is no alternative source for the information sought is an important factor in establishing ‘good cause’ for inspection. But it is not essential in every case.” Weil & Brown, Civil Procedure Before Trial, 8:1495.6 (citations omitted). “Declarations are generally used to show the requisite ‘good cause’ for an order to compel inspection. The declarations must contain ‘specific facts’ rather than mere conclusions.” Id. at 8:1495.7 (citation omitted). “The declarations may be on information and belief, if necessary. However, in such cases, the ‘specific facts’ supporting such information and belief (the sources of the information) must also be alleged.” Id. at 8:1495.8 (citation omitted). “Most declarations are made by the attorney for the moving party, who is usually more familiar with the relevancy and ‘specific facts’ constituting ‘good cause’ for inspection.” Id. at 8:1495.9.

Plaintiff Brittany Harman requests an order compelling defendant Kaleo Marketing to respond further to plaintiff’s Form Interrogatories – Employment, Nos. 200.1-6, 201.1-7, 207.1-2, 208.1-.2, 209.2, 211.1-3, 214.1-2, 215.1-2, 216.1, Special Interrogatories 1-62, and Request for Production of Documents, Nos. 1-51.

Plaintiff asserts that on November 14, 2022, plaintiff personally served defendant with discovery requests. On December 16, 2022, defendant served responses that contained only objections or did not respond at all (Request for Production, Nos. 36-50). On December 20, 2022, plaintiff’s counsel emailed defense counsel requesting substantive responses by December 30. Defense counsel did not reply and defendant did not serve further responses by December 30. On January 9, 2023, plaintiff’s counsel sent an email to defense counsel asking that defendant serve substantive responses. That same day, defense counsel requested to meet and confer by telephone on January 17. On January 10, plaintiff’s counsel replied that because defendant served only objections, “there really was no reason to speak by phone” but agreed to a telephone meet and confer after defendant served substantive responses should one be necessary. On January 17, 2023, plaintiff’s counsel asked for a date by which further responses would be served; that same day, defense counsel stated that they would check with their client. On January 19, plaintiff’s counsel asked for a date for further responses. Defense counsel stated that defendant would serve responses by January 31. Plaintiff’s counsel asked for responses by January 23 because the motion deadline was February 1. On January 30, plaintiff’s counsel asked defense counsel whether defendant was still intending to serve substantive responses on January 31. Defense counsel replied that defendant would not serve responses on January 31; instead, they promised to serve further responses on February 17. Plaintiff’s counsel responded that February 17 “was too long” and requested responses by February 6. On January 31, plaintiff’s counsel sent two emails asking for defendant to confirm a date to serve responses. Defendant did not respond. Plaintiff filed the motions on February 1.

In opposition, defendant contends that plaintiff “has been told repeatedly that Defendants are working on completing substantive responses” and that defendants “even gave a specific date for when they would be finished, February 17.” Defendant argues that because defendants have agreed to provide further responses, “this issue is moot and there is no reason to respond to Plaintiff’s separate statement.” Defendant asserts that even though they have agreed to provide further substantive responses, the objections were valid because over 80% of the interrogatories were repetitive. Defendant also contends that plaintiff failed to meet and confer and that “this trivial issue could have been settled in an IDC.”

In the reply, which was filed on February 24, plaintiff asserts that defendant has still not served any substantive responses. Plaintiff also argues that she sufficiently met and conferred and was willing to participate in an IDC but that the court was unavailable.

The court finds that plaintiff properly served written discovery requests and that defendant served only objections that lack merit. Although defendant agreed to serve substantive responses, it failed to do so.

Under CCP § 2023.030(a), “[t]he court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct. . . . If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction 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.” Under CCP § 2023.010, an example of the misuse of the discovery process is “(d) Failing to respond or to submit to an authorized method of discovery.”

Sanctions are mandatory in connection with motions to compel further responses against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel unless the court “finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” CCP § §2030.300(d), 2031.310(h).

Cal. Rules of Court, Rule 3.1348(a) states: “The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed.”

Plaintiff requests sanctions in the amount of $3468.91 (interrogatories) and $3068.91 (documents) against defendant and Mojajerian PLC and counsel Al Mohajerian. Defendant failed to act with substantial justification. The court finds that $3,338 ($400/hr. x 8 hrs. plus $138 in filing fees and costs) is a reasonable amount to be imposed against defendant and defendant’s attorney in total for both motions.

The motion for protective order is GRANTED in part. Plaintiff’s deposition is to be conducted after defendant has served its further responses and produced responsive documents.

On February 23, 2023, the court sustained with leave to amend plaintiff’s demurrer to the FAA.

Under CCP §2025.420, “(a) Before, during, or after a deposition, any party, any deponent, or any other affected natural person or organization may promptly move for a protective order. The motion shall be accompanied by a meet and confer declaration under Section 2016.040. (b) The court, for good cause shown, may make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. This protective order may include, but is not limited to, one or more of the following directions: . . . .”

The burden is on the moving party to establish “good cause” for whatever relief is requested. Generally, a deponent seeking a protective order will be required to show that the burden, expense, or intrusiveness involved in the discovery procedure clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence. Emerson Electric Co. v. Superior Court (1997) 16 Cal. 4th 1101, 1110.

CCP §2019.020(a) states that “discovery may be used in any sequence, and the fact that a party is conducting discovery, whether by deposition or another method, shall not operate to delay the discovery of any other party.” CCP § 2019.020(b) provides that “notwithstanding subdivision (a), on motion and for good cause shown, the court may establish the sequence and timing of discovery for the convenience of parties and witnesses and in the interests of justice.” “Since discovery proceedings can seldom if ever be conducted simultaneously, it is inherent in such proceedings that the party who secures discovery first may derive advantages by securing information from his adversary before he is required to reciprocate by divulging information to him. . . . [T]he existence of such advantages alone will ordinarily not constitute good cause for changing the normal timing of discovery or justify a conclusion that such timing will result in ‘annoyance, embarrassment or oppression.’” Rosemont v. Superior Court of Los Angeles County (1964) 60 Cal. 2d 709, 714.

Pursuant to CCP §2025.420(b), plaintiff Brittany Harman requests a protective order temporarily staying plaintiff’s deposition until (1) defendant Kaleo responds to plaintiff’s previously served first set of discovery; (2) defendant Kaleo produces all documents in its possession, custody, or control related to that previously served first set of discovery; and (3) defendant Kaleo produces the key personnel whose depositions plaintiff noticed first.

On November 28, 2022, plaintiff served written discovery on defendant. On December 6, 2022, plaintiff noticed the depositions of defendant Michael Oberlander and key management personnel Daniel Livingston and Nicholas Holden, for the first two weeks of February 2023. “Thirty-one minutes after Plaintiff noticed those depositions, Defendants noticed Plaintiff’s deposition for two weeks earlier on January 19.” Plaintiff objected to the deposition notice on the ground that she noticed defendants’ depositions first and was entitled to priority. Defendants served another deposition notice for January 31. Plaintiff contends that on December 16, 2022, defendant Kaleo served only objections to plaintiff’s written discovery. Plaintiff’s counsel sent meet and confer letters to obtain substantive responses. On January 19, 2023, defense counsel replied that defendant would serve responses by January 31 but plaintiff’s counsel requested responses by January 23 because motions to compel further responses were due February 1.

Plaintiff cites to Local Rule Chapter Three Civil Division Appendix 3.A Guidelines for Civility in Litigation at (e)(3), which states, “When a deposition is noticed by another party in the reasonably near future, counsel should ordinarily not notice another deposition for an earlier date without the agreement of opposing counsel.” She argues that “under the circumstances, it is unreasonable to try to push Plaintiff into a deposition where she will be asked questions about her employment, the company, her actions and the company’s actions—all essential to the question of the Defendants’ liability—without having the opportunity to refresh her recollection with company documents or understand Defendants’ intended defenses.”

In opposition, defendants argue that plaintiff fails to show good cause for the requested order. Defendants assert that plaintiff has been told repeatedly that defendants are working on completing substantive responses to the discovery requests, and that defendants even gave a specific date for when they would be finished, February 17. Defendants also argue that defendant has submitted responses by way of objections and that plaintiff “cannot unilaterally halt discovery simply because she has yet to receive substantive responses” and that the “responses have nothing to do with her deposition.”

In reply, plaintiff argues that defendant is trying to gain an advantage “through the abuse of discovery.”

The court finds that plaintiff has shown good cause for a protective order to delay her deposition until defendant’s written discovery responses and documents are produced. Defendant has delayed in responding and producing responsive documents and fairness warrants defendant’s responses and production of documents prior to plaintiff’s deposition.

Further, ordinarily, depositions proceed in whatever order they are noticed by the parties, although as stated above questions of priority may arise where a later-served notice sets a deposition before the date set in the first-served notice. See CCP §2019.020. Plaintiff first noticed the depositions of defendants, and then on that same date, defendant served notice of plaintiff’s deposition to be conducted before defendants’ depositions, which is presumably contrary to the Guidelines for Civility in Litigation under the Local Rules. But as to sequencing and timing of the depositions, the court declines to make such a schedule because defendants objected to plaintiff’s notice of deposition of defendants on the ground that it is defective as it lists multiple individuals, including those not represented by defense counsel.