Judge: Gregory Keosian, Case: 22STCV11431, Date: 2023-08-30 Tentative Ruling

Case Number: 22STCV11431    Hearing Date: April 10, 2024    Dept: 61

Plaintiff Chelsea Flowers’s Motions to Compel Further Responses to Requests for Production and Special Interrogatories from Defendants LA Organic Pharmacy, Inc. and Mecca Mid City are GRANTED as to Special Interrogatories No. 10, 11, 14–18, and 20–24, and Requests for Production, Set One, Nos. 24–26, 28, 49, 61–71, 73, and 75–77.  

Sanctions are awarded against Defendants and their counsel in the amount of $3,396.60 and fees of $246.60.

Plaintiff to give notice.

I.       MOTIONS TO COMPEL FURTHER

“Any party may obtain discovery . . . by propounding to any other party to the action written interrogatories to be answered under oath.”  (Code Civ. Proc., § 2030.010(a).) If a propounding party is not satisfied with the response served by a responding party, the former may move the court to compel further interrogatory responses.  (Code Civ. Proc., § 2030.300; Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 403.)  The propounding party must demonstrate that the responses were incomplete, inadequate or evasive, or that the responding party asserted objections that are either without merit or too general.  (Code Civ. Proc., § 2030.300(a)(1)–(3); Sinaiko Healthcare Consulting, Inc., supra, 148 Cal.App.4th at 403.)

“A propounding party may demand a responding party to produce documents that are in their possession, custody or control. (Code Civ. Proc., § 2031.010.) A party may likewise conduct discovery by propounding interrogatories to another party to be answered under oath. (Code Civ. Proc. § 2030.010, subd. (a).) The responding party must respond to the production demand either by complying, by representing that the party lacks the ability to comply, or by objecting to the demand. (Code Civ. Proc., § 2031.210.) The responding party must respond to the interrogatories by answering or objecting. (Code Civ. Proc. § 2030.210, subd. (a).) If the responding party fails to serve timely responses, the propounding party may move for an order compelling responses to the production demand and interrogatories. (Code Civ. Proc., §§ 2030.290, 2031.300.)

Plaintiff Chelsea Flowers (Plaintiff) seeks further responses from Defendants LA Organic Pharmacy Inc. and Mecca Mid City (Defendants) to Special Interrogatories, Set One, Nos. 10, 11, 14–18, and 20–24, and Requests for Production, Set One, Nos. 24–26, 28, 49, 61–71, 73, and 75–77. These discovery requests and others were the subject of previous motions to compel further, which this court granted on August 30, 2023.

Interrogatories No. 10 and 11 sought the identities of Defendants’ persons most qualified for certain subjects, to which they responded by referring to an individual identified as “Payroll at Paychex,” apparently a third party payroll vender. (Separate Statement at pp. 2–9.) Interrogatories No. 16–18, 20, and 21 sought information concerning the total number of current and former aggrieved employees during the covered period, total aggrieved employees per pay period during that time, and their dates of employment. Defendant responded that it did “not have sufficient knowledge and information to respond to this interrogatory” and stated that they called for a legal conclusion. (Separate Statement at pp. 21–41.)[1] Despite being unable to identify numbers or dates of employment for aggrieved employees, Defendant responded to Interrogatories No. 22 and 23 (which sought the current rates of pay and highest rates of pay for all current and former aggrieved employees) by offering $17 and $19 per hour, respectively. (Separate Statement at pp. 42–50.) And asked in Interrogatory No. 24 to identify the job titles of aggrieved employees, Defendant responded “Budtender.” (51–54.)

Further responses are required. The term “aggrieved employees” was defined in the interrogatories to refer to “all current and former hourly employees employed by Defendant within the State of California” during the “covered period,” this latter term encompassing January 28, 2021, to the present. (Motion Exh. A.) Defendant contends that it provided records identifying 47 employees with the responsive information. (Opposition at p. 5.) But at Plaintiff notes in the motion, these documents provide no contact information responsive to Interrogatories No. 14 or 15. (Motion Exh. J.) Moreover, Defendants do not explain why, if the documents provide the requested information, their responses to the interrogatories at issue provide different information, or in some cases state outright that Defendants have no information at all. Although Defendant contends that identifying this information for 47 employees is “burdensome task,” they present no evidence to show that this is the case. ““[T]he party opposing discovery has an obligation to supply the basis for this determination,” and to provide evidence “showing the quantum of work required.” (Williams v. Superior Court (2017) 3 Cal.5th 531, 549.) There is no basis to find that providing complete responses poses a burden.

A further response is also required as to those interrogatories seeking Defendant’s person most knowledgeable, to which Defendants responded by identifying a representative of a third-party vender. Although Defendants argue that a person most knowledgeable under Code of Civil Procedure § 2025.230 may be an “agent,” and that a “third-party vendor that is a professional company engaged to oversee Defendants’ payroll is a sufficient ‘agent’” under this meaning, this argument is unpersuasive. (Opposition at p. 6.) Definitionally, a witness that an entity deponent “produce[s]” under Code of Civil Procedure § 2025.230 must be someone whom the entity is capable of producing, i.e. capable of directing their appearance as part of the employment or agency relationship. Defendants do not contend that they can direct the third-party vender’s appearance at deposition without resort to procedures for third-party discovery.

The motion is therefore GRANTED as to the special interrogatories.

The parties’ dispute over the requests for production is as follows. Requests No. 61–68  and 75–77 sought documents related to employee payments and schedules, to which Defendants responded with objections and cursory directions to “[s]ee documents bates labeled” with certain page ranges. (Separate Statement at pp.22–59, 76–89.) Requests No. 24–26, 28, and 49 sought documents related to Defendant’s internal assessments, audits, meetings related to Defendants’ compliance with California labor laws, as well as copies of relevant insurance policies. (Separate Statement at pp. 2–21.) Defendant responded with statements of inability to comply, stating in one iteration of the responses that it is “of the belief that these documents never existed, or have otherwise been destroyed, lost or misplaced,” and in the final iteration of responses that “these documents have never been or are no longer in the possession, custody, or control of the responding party.” (Ibid.) Defendants provided the same responses to Requests No. 69–71, which sought documents related to termination of aggrieved employees, payment of final wages, and employee payments for business items. (Separate Statement at pp. 61–71.) Request No. 73 sought all documents related to any investigation concerning Plaintiff’s claims, to which Defendant responded only with objections. (Separate Statement at pp. 71–75.)

Defendants’ responses are insufficient. Defendants do not provide statements of compliance in keeping with Code of Civil Procedure § 2031.220, indicating whether and to what extent they are complying with the request, instead offering terse directions to the propounding party to “see” cited page numbers.[2]

Nor do Defendants comply with Code of Civil Procedure § 2031.230, addressing statements of inability to comply. That statute requires the responding party to state “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.” (Code Civ. Proc. § 2031.230.) Defendants do not state “whether” any of those conditions apply, but essentially restate the statutory terms without stating which of them accurately describes the disposition of the documents, or whether they may be found with “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.) Even if Defendants’ investigation is unable to turn up the precise disposition of the documents requested, this does not obviate the necessity of a response: “If only partial answers can be supplied, the answers should reveal all information then available to the party. If a person cannot furnish details, he should set forth the efforts made to secure the information.” (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 782.)

It is unclear from these responses whether Defendants withhold any documents pursuant to objections — save the objections offered against Request No. 73, which sought documents related to its investigation of claims, to which it offered objections only. (Separate Statement at pp. 72–75.) To the extent that Defendants withhold any documents pursuant to objections they must:

(1) Identify 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.

(2) Set forth clearly the extent of, and the specific ground for, the objection. If an objection is based on a claim of privilege, the particular privilege invoked shall be stated. If an objection is based on a claim that the information sought is protected work product under Chapter 4 (commencing with Section 2018.010), that claim shall be expressly asserted.

(Code Civ. Proc. § 2031.240, subd. (b)(1), (2).) Defendants must accordingly identify and justify the withholding of responsive documents pursuant to the above statute.

All motions to compel further are therefore GRANTED in their entirety.

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, requests for production of documents, or requests for admission, absent substantial justification otherwise. (Code Civ. Proc. §§ 2030.300, subd. (d); 2031.310, subd. (h); 2033.290, subd. (d).)

Plaintiff seeks $3,396.60 in sanctions against Defendants and their counsel, representing six hours of work on the motions in total, plus $246.60 in filing fees. (Nguyen Decl. ¶¶ 15–17.)

Sanctions are awarded against Defendants and their counsel in the amount of $3,396.60 plus fees of $246.60.