Judge Gary I. Micon, Case Number: 23CHCV02307, Date: 2024-11-14 Tentative Ruling

Judge: Gary I. Micon, Case: 23CHCV02307, Date: 2024-11-14 Tentative Ruling

Case Number: 23CHCV02307 Hearing Date: November 14, 2024 Dept: F43

Dept. F43

Date: 11-14-24

Case #23CHCV02307 , Seyran Avetisyan vs. Aramark Uniform & Career Apparel, LLC, et al.

Trial Date: 12-1-25

MOTIONS TO COMPEL FURTHER DISCOVERY RESPONSES

MOVING PARTY: Defendant Aramark Uniform & Career Apparel, LLC

RESPONDING PARTY: Plaintiff Seyran Avetisyan

RELIEF REQUESTED

Plaintiff’s Further Responses to Defendant’s Requests for Production, as well as sanctions.

RULING: Motion is granted in part and denied in part.

SUMMARY OF ACTION AND ANALYSIS

On August 2, 2023, Plaintiff Seyran Avetisyan (Plaintiff) filed this employment law action against Defendant Aramark Uniform & Career Apparel, LLC (Defendant).

Defendant propounded discovery on Plaintiff, including the relevant requests for production of documents. Plaintiff was an outside salesperson for Defendant whose job duties meant that he spent more than half his working time for Defendant away from the workplace selling Defendant’s products and services. Plaintiff filed this action against Defendant, claiming that he was misclassified as exempt and should have been paid overtime and provided with meal and rest periods, and he alleges that he received inaccurate wage statements and seeks to recover waiting time penalties for the failure to pay all wages owed upon termination.

This motion concerns the requests for production that Defendant served on Plaintiff. The requests at issue are Request Nos. 1, 2, 4, 5, 7, 8, 11, 13, 14, 16, 17, 18, 19, 20, 21, 22, 23, 24, 29, 30, 31 and 32. To several of the requests, Plaintiff responded by saying that the documents were not in his custody and control, either because he no longer has access to his work phone or because the documents are in the custody and control of Defendant. Plaintiff did provide screen captures of two emails and a couple of phone messages that he claims he saved from a computer that has since broken down. Defendant disputes the authenticity of the emails and has requested that Plaintiff provide the metadata for the emails, but Plaintiff claims that he is unable to do so.

The requests at issue concern documents that Plaintiff received during his employment, including workplace handbooks, emails and messages, etc. These are the documents that Plaintiff claims are no longer in his possession. Defendant has also requested that Plaintiff provide documents for his personal phone records and credit cards. Finally, Defendant has asked for sanctions in the amount of $17,747.50 against Plaintiff.

Defendant indicates that prior to the filing of this motion, the parties met and conferred several times, and each time Plaintiff indicated that he did not have access to the requested documents.

Plaintiff does not dispute the relevancy of the requested documents in his opposition. Instead, Plaintiff argues that he does not have access to the requested work-related documents or the metadata for the couple of emails that he provided because the computer that they were on has broken down and that he was only able to save them by saving copies to a USB drive. He also argues that Defendant could obtain his personal phone records and credit card statements through subpoenas. Additionally, Plaintiff claims that he had trouble figuring out what Defendant meant by metadata because of a language barrier. Finally, Plaintiff argues that the amount of sanctions requested by Defendant is excessive.

Defendant argues in its reply that Plaintiff must have fabricated the emails or destroyed the USB and computer that held them. Defendant also argues that Plaintiff is obligated to collect and produce his cell phone and credit card records and cannot simply say that Defendant must subpoena them. Defendant also argues that Plaintiff cannot evade discovery based on the unsupported assertion that documents are “equally available and easily accessible by Aramark.” Next, Defendant argues that Plaintiff’s new argument regarding supposed language issues does not excuse his failure to provide compliant discovery responses. Finally, Defendant argues that is request for monetary sanctions is reasonable and well-supported.

When a responding party’s objections and responses to requests for production are “without merit” and/or “too general,” a party may move to compel further responses for “good cause.” (CCP § 2031.310) The “good cause” requirement is met by a showing of relevance. (TBG Ins. Servs. Corp. v. Superior Court (2022) 96 Cal.App.4th 443, 448.) Relevance in this context is broad. (Id.) Evidence is “relevant” if it might reasonably assist a party in evaluating its case, preparing for trial, or facilitating a settlement. (Id.) “Under the Legislature’s ‘very liberal and flexible standard of relevancy,’ any ‘doubts as to relevance should generally be resolved in favor of permitting discovery.’” (Williams v. Superior Court (2017) 3 Cal.5th 531, 542 (quoting Pac. Tel. & Tel. Co. v. Superior Court (1970) 2 Cal.3d 161, 173).) Courts presume all relevant nonprivileged evidence in a party’s possession is discoverable. (Glenfed Dev. Corp. v. Superior Court (1997) 53 Cal.App.4th 1113, 1117.)

As previously noted, Plaintiff does not dispute the relevance of the requested documents. Instead, Plaintiff claims that he does not possess the requested documents or that Defendant should request them from outside sources.

For the issue of the cell phone and credit card records (Request Nos. 13 and 14), a party has a “duty to take the steps necessary to exercise this control and retrieve the requested documents.” (Facebook, Inc. v. Super. Ct. (2017) 15 Cal.App.5th 729, 746 (“the obligation to produce materials within a person’s control ‘carries with it the attendant duty to take the steps necessary to exercise this control and retrieve the requested documents. ... [A] party’s disinclination to exercise this control is immaterial, just as it is immaterial whether a party might prefer not to produce documents in its possession or custody’”).) Even if Plaintiff did not have a duty to at least attempt to get these records, Plaintiff has not provided Defendant with his cell phone provider or his credit card companies. If Plaintiff cannot obtain these documents himself, he must provide Defendant with the information of the entities that do have this information. (See CCP § 2031.230 (requires a response to “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.”).)

Plaintiff is ordered to provide further responses to Request Nos. 13 and 14, either in the form of the responsive documents or in the form of the information for the entities that do have these documents.

For Request Nos. 3 (though not listed in Defendant’s notice of motion, it is included in Defendant’s separate statement) and 4, Plaintiff responds that the responsive documents are no longer in his possession, either because they were on his work phone, which is now in the custody of Defendant. To state that he is not in possession of the responsive documents is a sufficient response.

For Request Nos. 29 and 30, which request emails sent by Plaintiff and the emails’ metadata, Plaintiff’s supplemental response states that “Without waiver of the previously asserted objections, after a diligent search and reasonable inquiry, Plaintiff is unable to comply with this request because responsive documents are no longer in his possession, custody, or control.” Plaintiff does not state in his response why the documents are no longer in his possession, custody, or control. However, in his opposition, Plaintiff argues, without evidence or any kind of declaration, that the documents are not in his control because they were on a computer that has since broken down, and Plaintiff only managed to save a few emails on a USB drive. Plaintiff also makes an unsupported argument regarding a language barrier that prevented him from understanding what was meant by metadata. Plaintiff has not provided sufficient evidence for his failure to respond to these requests. Plaintiff must provide further responses to these requests.

As for the rest of the requests (Request Nos. 1, 2, 5, 7, 8, 11, 16-24, 31, and 32), Plaintiff claims in his opposition that he does not have the documents in his custody or control. However, this is not clear from several of Plaintiff’s responses, which he just answers by stating some variant of “Plaintiff will not comply with this request because any responsive documents are believed to be in the possession, custody, or control of Defendant. Discovery and investigation are still ongoing, and Plaintiff reserves the right to respond further at a later date.” Plaintiff’s responses do not state that they are not in his possession. Stating that the documents are in Defendant’s custody and control is not sufficient reason to not produce the documents. If Plaintiff has any of these documents in his possession, he must produce them. If they are not in Plaintiff’s custody and control, he must explicitly say so and that he made a reasonable effort to search for them.

Accordingly, the motion to compel further responses is granted for Request Nos. 1, 2, 5, 7, 8, 11, 13, 14, 16-24, 29, 30, 31, and 32. The motion is denied for Request Nos. 3 and 4.

Sanctions

Defendant has requested sanctions in the amount of $17,747.50 against Plaintiff for attorney fees and costs related to bringing this motion. Defendant has made this request pursuant to CCP §§ 2023.010(d) (failure to submit constituted a “misuse[] of the discovery process”) and 2023.030(a) (a party, its attorney, or both, are subject to monetary sanctions when they “engag[e] in the misuse of the discovery process”).

The amount of $17,747.50 that Defendant has requested is based on Defendant’s attorneys spending 7.5 hours on drafting the motion and related documents at $950.00 per hour, spending 16.9 hours researching the authority and drafting the documents at $625.00 per hour, and the $60 filing fee. (Zenewicz Decl., ¶ 13.)

Plaintiff argues in his opposition that this amount is excessive and does not match the definition of reasonable contemplated by CCP § 2023.030. Upon review the court concludes that this amount is unreasonable given the nature of the dispute and the time spent by defense counsel. Accordingly, the court concludes that $10,000 is a reasonable award as sanctions.

Accordingly, the Court will award sanctions in the reduced amount of $10,000.00.

ORDER

Defendant’s motion to compel further responses to granted for Request Nos. 1, 2, 5, 7, 8, 11, 13, 14, 16-24, 29, 30, 31, and 32. The motion is denied for Request Nos. 3 and 4. Defendant is to provide complete and code-compliant responses within 30 days.

Defendant’s request for sanctions is granted. Plaintiff is ordered to pay $10,000.00 in sanctions to Defendant’s counsel within 30 days.

Moving party to give notice.