Judge Elaine Lu, Case 19STCV43283 2022-07-26 Tentative Ruling

On December 3, 2019, Plaintiff Blanca Romero (“Plaintiff”) filed the instant employment discrimination action against defendant D. Bailey Management Company and Does 1 through 20. On June 30, 2020, Plaintiff named defendants Donald Bailey and Lois Bailey as Does 1 and 2 respectively. On September 21, 2020, defendants Donald Bailey and Lois Bailey were dismissed at the oral request of Plaintiff. (Minute Order 9/21/20.) On January 27, 2021, Plaintiff named defendants Donald Bailey Sr. and McDonald’s Restaurants of California, Inc. as Does 3 and 4 respectively. On April 8, 2021, Plaintiff dismissed defendant McDonald’s Restaurants of California, Inc. without prejudice.

On November 3, 2021, Plaintiff filed the operative Second Amended Complaint (“SAC”) against Defendants Donald Bailey Sr. (“Bailey”) and D. Bailey Management Company (“DBM”) (jointly “Defendants”).[1] The SAC asserts nine causes of action for (1) Discrimination in violation of the Fair Employment and Housing Act (“FEHA”), (2) Retaliation in violation of FEHA, (3) Failure to Prevent Discrimination and Retaliation in violation of FEHA, (4) Failure to Provide Reasonable Accommodations in violation of FEHA, (5) Failure to Engage in a Good Faith Interactive Process in violation of FEHA, (6) Retaliation in violation of the California Family Rights Act (“CFRA”), (7) Declaratory Judgment, (8) Wrongful Termination in Violation of Public Policy, and (9) Failure to Permit Inspection of Personnel and Payroll Records. The first seven causes of action are against only DBM. The eighth and ninth causes of action are against both Defendants.[2]

On January 18, 2022, Defendant DBM filed the instant motion to compel further responses to request for production of documents, set two (“RPDs”). On July 6, 2022, the Court held an informal discovery conference regarding the at issue RPDs. On July 13, 2022, Plaintiff filed an opposition. On July 19, 2022, DBM filed a reply.

Plaintiff was a cashier for defendants from November 2016 through December 22, 2017. (SAC ¶¶ 16, 27.) “On or about December 4, 2017, Plaintiff informed her supervisors that she was not feeling well. Specifically, Plaintiff informed her supervisor that she was experiencing a severe headache and dizziness due to her diabetes. Plaintiff requested time-off of work to seek medical treatment and recover.” (SAC ¶ 18.) “Plaintiff required reasonable accommodations due to her disabilities, including but not limited to being able to take work restriction and medical leave to seek treatment for her disabilities.” (SAC ¶ 19.) “Between on or about December 7, 2017 through on or about December 11, 2017, Plaintiff continued to suffer from the physical symptoms of which she had previously informed Defendants. As a result, Plaintiff did not work on the aforementioned time period.” (SAC ¶ 20.) “On or about December 12, 2014, upon her return to work, Plaintiff was summarily suspended and instructed to call Defendants’ on or about December 17, 2017.” (SAC ¶ 21.) “Between on or about December 16, 2017 through on or about December 18, 2017, Plaintiff repeatedly called Defendants requesting reinstatement. However, Defendants failed and refused to reinstate Plaintiff.” (SAC ¶ 22.) On December 22, 2017, Plaintiff was terminated. (SAC ¶ 27.)

Between December 2017 and January 2018, Defendants were in the process of selling Defendants’ restaurant – where Plaintiff worked – to a third party. (SAC ¶ 23.) “Defendants intentionally excluded Plaintiff from Defendants’ list of employees that was provided the purchasing third party in order to avoid providing the new ownership with employees that required accommodations.” (SAC ¶ 24.) “Defendants, and each of them, excluded Plaintiff as a candidate to transfer to work under new ownership because she had medical condition, required accommodations, and was on a doctor ordered leave of absence at the time Defendants informed the new ownership of their personnel.” (SAC ¶ 28.)

Code of Civil Procedure section 2031.310 provides, in pertinent part, as follows:

(a) On receipt of a response to a demand for inspection, copying, testing, or sampling, the demanding party may move for an order compelling further response to the demand if the demanding party deems that any of the following apply:

(2) A representation of inability to comply is inadequate, incomplete, or evasive.

(1) The motion shall set forth specific facts showing good cause justifying the discovery sought by the demand.

(2) The motion shall be accompanied by a meet and confer declaration under Section 2016.040.

A code-compliant response to a request for production consists of any of the following: (1) a statement that the party will comply, (2) a representation that the party lacks the ability to comply, or (3) an objection. (CCP §§ 2031.210.) A statement that the party will comply must state that the Request for Production (“RPD”) “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.) “If only part of an item or category of item in a demand for inspection, copying, testing, or sampling is objectionable, the response shall contain a statement of compliance, or a representation of inability to comply with respect to the remainder of that item or category.” (CCP § 2031.240(a).) If an objection is made the responding party must “[i]dentify with particularity any document, tangible thing, land, or electronically stored information falling within any category of item in the demand to which an objection is being made.” (CCP § 2031.240(b)(1).)

A party making a motion to compel further responses must do so within 45 days of service of the verified response unless the parties agree in writing and specify a later date. (CCP § 2031.310(c).) The 45-day limit is jurisdictional as the Court has no authority to grant late-filed papers. (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.) However, this 45-day limit is extended if served by mail, overnight delivery, fax, or electronically. (See CCP §§ 1010.6(a)(4), 1013.)

On November 17, 2021, Plaintiff served her initial response to the at issue RPDs by electronic service. (Harwin Decl. ¶ 3, Exh. 2.) On December 29, 2021, the parties agreed to extend the deadline to move to compel. (Harwin Decl. ¶ 6.) Accordingly, the instant motion filed January 18, 2022 is timely.

Pursuant to Code of Civil Procedure section 2031.310(b)(2) a motion to compel further responses to a request for production “shall be accompanied by a meet and confer declaration under Section 2016.040.” (CCP § 2031.310(b)(2).) “A meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (CCP § 2016.040.)

Defendant DBM has adequately met and conferred. On November 18, 2021, Defendant DBM’s Counsel sent a meet and confer letter regarding the responses noting that the documents produced were not responsive. (Harwin Decl. ¶ 4.) On December 8, 2021, Defendant DBM’s Counsel sent a follow up email. (Harwin Decl. ¶ 5.) After the December 22, 2021 informal discovery conference, the parties agreed through email on December 29, 2021 to extend the deadline to compel further responses due to technical issues Plaintiff’s Counsel had on December 28, 2021. (Harwin Decl. ¶ 6.) On January 5, 2022, Defendant DBM’s Counsel sent a follow up for the RPDs, but Plaintiff did not respond. (Harwin Decl. ¶ 7.) On January 6, 2022, Defendant DBM’s Counsel sent another meet and confer letter, but Plaintiff’s Counsel failed to respond. (Harwin Decl. ¶ 8.) On January 11, 2022, Defendant DBM’s Counsel sent another meet and confer letter trying to get in contact with Plaintiff’s Counsel to which Plaintiff’s Counsel did not respond. (Harwin Decl. ¶ 9.) On January 12, 2022, Defendant DBM sent another meet and confer email to which Plaintiff’s Counsel failed to respond. (Harwin Decl. ¶ 10.) Through January 13-18, 2022, Defendant DBM’s Counsel continued to contact Plaintiff’s Counsel through email and phone calls, but Plaintiff’s Counsel failed to respond. (Harwin Decl. ¶¶ 11-14.)

On July 6, 2022, during the informal discovery conference, Plaintiff agreed to supplement their response to the at issue RPDs. (Minute Order 7/6/22.) On July 11, 2022, Plaintiff supplemented their responses to the at issue RPDs. (DeClue Decl. ¶ 3, Exh. 1.)

Here, as noted in the history above, Plaintiff served further responses on July 11, 2022. (DeClue Decl. ¶ 3, Exh. 1.) As specified at the informal discovery conference, “the responding party’s voluntary service of supplemental responses prior to the hearing will moot all issues for the motion except for sanctions.” (Minute Order 7/6/22.)

In reply, Defendant DBM contends that the instant motion is not moot because the supplemental responses are insufficient. The Court disagrees.

Pursuant to Code of Civil Procedure § 2031.310 “[o]n receipt of a response to a demand for inspection, copying, testing, or sampling, the demanding party may move for an order compelling further response to the demand” [.] (Id., [italics added].) Here, as a further response has been provided there is nothing further to compel from the original response, or in this case the first supplemental response. Thus, the instant motion is moot except as to sanctions. To the extent Defendant DBM contends that the responses are deficient, Defendant DBM must timely bring a new motion to compel further. Further, to the extent that Defendant DBM contends that Plaintiff has failed to provide responsive documents, Defendant DBM must move to compel compliance with written response pursuant to Code of Civil Procedure § 2031.320(a).

Defendant DBM request sanctions against Plaintiff and her counsel of record to reimburse Defendant DBM for the cost of bringing the motion. Specifically, for reimbursement of 4 hours preparing the motion, 2 hours reviewing and responding to an opposition, and 3 hours attending the hearing at $285 an hour for a total of $2,565.00. (Harwin Decl. ¶ 15.) In reply, Defendant DBM’s Counsel notes that 5 hours were incurred reviewing Plaintiff’s opposition and preparing a repl. (Supp. Harwin Decl. ¶ 7.)

For a motion to compel further responses, “[t]he court shall impose a monetary sanction … against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to [request for production], 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.” (CCP § 2031.300(c), [italics added].) Accordingly, sanctions are mandatory for both motions unless the circumstances make the imposition of sanctions unjust.

Plaintiff contends that sanctions are not warranted because “[t]he issues that Defendant raised regarding Plaintiff’s responses were technical issues, that were resolved via Plaintiff’s supplemental responses.” (Opp. at pp.2:28-3:1.) The Court disagrees.

For example, the original response to RPD No. 65 substantively stated that “[a]fter a diligent search and a reasonable inquiry, Plaintiff will comply with this request in whole by producing all, of the requested items, that are in Plaintiff’s possession, custody, or control.” (DeClue Decl. ¶ 3, Exh. 1 at RPD No. 65.) However, the supplemental response substantively states that “[a]fter a diligent search and a reasonable inquiry, Plaintiff is unable to comply with this request because Plaintiff has no responsive documents in its possession, custody, or control but if documents should exist, Plaintiff believes that H. Claude Hudson Comprehensive Health Center, 2829 S Grand Ave, Los Angeles, CA 90007, (213) 699-7000 would be in possession of such documents. Plaintiff has attempted in good faith to obtain these documents from the medical provider but had not been able to obtain these documents. These documents should also be in Defendant’s possession, as Plaintiff gave the note to her supervisor.” (DeClue Decl. ¶ 3, Exh. 1 at RPD No. 65.) The original response that Plaintiff would comply was false and contradicted the supplemental response that Plaintiff could not comply because Plaintiff was not in possession, custody, or control of such documents. Thus, the supplemental responses were not to address a mere technical deficiency, but to correct previous misrepresentations in the original responses to the RPDs. Moreover, Plaintiff fails to address the lack of response to Defendant DBM’s meet and confer efforts, which may have likely avoided the need for the instant motion had Plaintiff’s Counsel responded. In light of Plaintiff’s Counsels lack of communication and the previous responses necessitating the instant motion, , the imposition of sanctions is warranted and not unjust.

Moreover, the Court finds that the amount requested – $2,565.00 – is not unreasonable in view of the totality of the circumstances. The Court finds that $2,565.00 reasonably compensates Defendant DBM for attorney’s fees and costs incurred in bringing these motions.

Plaintiff Blanca Romera and her attorney of record, Employee Justice Legal Group, PC, are jointly and severally liable and ordered to pay monetary sanctions in the amount of $2,565.00 to Defendants D. Bailey Management Company by and through counsel, within thirty (30) days of notice of this order.

Based on the foregoing, Defendants D. Bailey Management Company’s motion to compel further responses to request for production of documents, set two is DENIED AS MOOT.

Defendant D. Bailey’s Management Company’s request for sanctions is GRANTED.

[1] The parties stipulated to the filing of a Second Amended Complaint on November 2, 2021. (Minute Order 11/2/21.)

[2] On February 24, 2022, the Court sustained Defendants’ motion to strike the prayer for punitive damages without leave to amend. (Order 2/24/22.)

Superior Court of California

County of Los Angeles

Department 26