Judge Gregory Keosian, Case Number: 22STCV08855, Date: 2023-10-12 Tentative Ruling

Judge: Gregory Keosian, Case: 22STCV08855, Date: 2023-10-12 Tentative Ruling

Case Number: 22STCV08855 Hearing Date: October 12, 2023 Dept: 61

Plaintiff Eloy Gabriel Silva’s Motions to Compel Further Responses to Special Interrogatories and Reqeusts for Production from Defendant Hayats Kitchen are GRANTED. Further code-compliant responses are ordered within 30 days of this order. Sanctions are DENIED.

Plaintiff to give notice.

I. MOTIONS TO COMPEL FURTHER

“A party may demand that any other party produce . . . a document that is in the possession, custody, or control of the party on whom the demand is made.” (Code Civ. Proc., § 2031.010(b).) The demanding party may move for an order compelling further response to the demand if the demanding party deems that (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. (Code Civ. Proc., § 2031.310(a).) “The motion shall set forth specific facts showing good cause justifying the discovery sought by the demand,” and “[t]he motion shall be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc., § 2031.310(b).)

A motion to compel a further response to an inspection demand must set forth specific facts showing “good cause” justifying the discovery sought by the inspection demand. (Code Civ. Proc., § 2031.310(b)(1); Kirkland v. Superior Court (2002) 95 Cal.App.4th 92, 98.) Unless there is a legitimate privilege issue or claim of attorney work product, that burden is met simply by a fact-specific showing of relevance. (TBG Ins. Services Corp. v. Superior Court (2002) 96 Cal.App.4th 443, 444.) Once the moving party demonstrates good cause for the discovery, the burden is on the responding party to justify any objection or failure to fully respond to the inspection demand. (Coy v Superior Court (1962) 58 Cal.2d 210, 220.)

Plaintiff Eloy Gabriel Silva (Plaintiff) seeks further responses from Defendant Hayats Kitchen (Defendant) to Requests for Production No. 13, 17, 21, and 44, and Special Interrogatories No. 54, 56, 62, 64, 70, 73, 80, and 81.

The requests for production sought documents related to Defendant’s post-termination contacts with Plaintiff, video surveillance related to the Complaint’s allegations, and documents related to any attendance issues Plaintiff had in the course of his employment. (Separate Statement at pp. 3–7.) Defendant responded that “the requested documents are not in Defendant’s possession, custody, or control.” (Ibid.) Request No. 44, meanwhile, sought documents signed by any employees in which they waived rights under the California Labor Code through the past ten years, to which Defendant responded with objections based on relevance and privacy. (Separate Statement at pp. 7–8.)

Good cause supports the requests here. They seek communications with Plaintiff after and around his termination, documents related to Plaintiff’s attendance, and video surveillance related to his allegations. These requests are reasonably likely to yield information related to the subject matter of this litigation. Request No. 44 seeks waivers of rights under the Labor Code, which is relevant to determine whether other employees were subject to conduct similar to that alleged by Plaintiff. (See Johnson v. United Cerebral Palsy/Spastic Children's Foundation of Los Angeles and Ventura Counties (2009) 173 Cal.App.4th 740, 767 [discussing admission of “me too” evidence in wrongful termination case].)

Defendant’s responses to Requests No. 13, 17, and 21 are non-compliant. They are nominally statements of inability to comply, and therefore must comply with Code of Civil Procedure § 2031.230:

A representation of inability to comply with the particular demand for inspection, copying, testing, or sampling shall affirm that a diligent search and a 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. The 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.

(Code Civ. Proc. § 2031.230.) It is insufficient for Defendant to simply state that the documents are not in its possession. It must also state why the requested documents cannot be produced, such as whether they have been destroyed, lost, or never existed. Further responses are required for these requests.

A further response is also required as to Request No. 44, as Defendant has not defended the objections it proposed in response to the request. Once the moving party demonstrates good cause for the discovery, the burden is on the responding party to justify any objection or failure to fully respond to the inspection demand. (Coy v Superior Court (1962) 58 Cal.2d 210, 220.) Defendant has filed no opposition to the motion.

Accordingly, the motion is GRANTED as to the requests for production.

Special Interrogatories No. 54, 56, 62, and 64, meanwhile, asked Defendant to identify individuals with knowledge of Defendant’s lawful compliance with the labor laws Plaintiff alleges Defendant violated, to which Defendant responded by referring to an unnamed “bookkeeper and payroll accountant.” (Separate Statement at pp. 3–9.) This was nonresponsive, as Defendant did not supply the requested identification of the witness.

Interrogatories No. 70, 73, 80, and 81 asked Defendant to describe the dates and instances in which Plaintiff failed to comply with employment standards, competently perform his duties, or had an attendance issue, to which Defendant responded either that it could “not recall the specific instances Plaintiff received a verbal warning,” or else that it could not recall “each and every date Plaintiff had an attendance issue.” (Separate Statement at pp. 10–15.) These responses are likewise non-compliant, as interrogatory responses must “be as complete and straightforward as the information reasonably available to the responding party permits,” and “[i]f an interrogatory cannot be answered completely, it shall be answered to the extent possible.” (Code Civ. Proc. § 2030.220, subd. (a), (b).) Defendant’s responses with reference to “verbal warning[s]” are non-responsive, as the interrogatories do not confine their subject matter to verbal warnings. Moreover, even if Defendant cannot recall “each and every” instance responsive to the interrogatory, it must respond to the extent information is available to it, after making “a reasonable and good faith effort to obtain the information.” (Code Civ. Proc. § 2030.220, subd. (c).)

The motions to compel further are therefore GRANTED.

II. SANCTIONS

Statute provides that the court shall impose sanctions upon a party who unsuccessfully makes or opposes a motion to compel further response to interrogatories or requests for production of documents, absent substantial justification otherwise. (Code Civ. Proc. §§ 2030.300, subd. (d); 2031.310, subd. (h).)

Plaintiff seeks $4,860.00 in connection with the document requests motion, and $6,660.00 in connection with the interrogatories motion, representing a total of 19 hours of attorney work at $600 per hour, plus two $60 filing fees. (Mohrsaz Decl. ¶¶ 22–28.) This includes seven hours of attorney work reviewing and replying to an opposition that was never filed, and one duplicative hour to attend hearing on these motions. (Mohrsaz Decl. ¶¶ 24–26.) Thus the maximum sanctions award here is $6,720.00.

Sanctions are DENIED.