Judge: Gregory Keosian, Case: BC687180, Date: 2023-02-28 Tentative Ruling

Case Number: BC687180    Hearing Date: February 28, 2023    Dept: 61

Plaintiff Ismael Cortez’s Motion to Compel Further Responses to Requests for Production and Special Interrogatories, Sets Four and Supplemental, and to Compel Deposition of Defendant Landcare USA, LLC, is GRANTED as to the Requests for Production, Set Four and Supplemental, and is otherwise DENIED as moot. No sanctions are awarded.

Plaintiff to provide notice.

I.                MOTION TO COMPEL FURTHER – PRODUCTION OF DOCUMENTS

“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.)

“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.)

Plaintiff Ismael Cortez (Plaintiff) seeks further responses to the following discovery: Requests for Production, Set 4, No. 2, 3, 5, and 8; Special Interrogatories, Set Four, No. 30–32; Supplemental Request for Production and Supplemental Interrogatory; and to compel the deposition of Defendant’s persons most knowledgeable, for which the dates of deposition have not yet been obtained.

Defendant argues, and Plaintiff in reply acknowledges, that the motion has been made moot in several respsects by the provision of supplemental responses during the pendency of the motion. Plaintiff in reply agrees that no further court action is necessary as to any interrogatories. (Reply at p. 5.) The motion is therefore DENIED as to the interrogatories.

Plaintiff further acknowledges that the parties have agreed to dates on which to conduct Defendant’s PMK depositions — February 24, 28, and March 2 — but seeks a court order compelling compliance with this schedule. (Reply at p. 4.) Given the parties’ agreement, no such order is needed, and the motion is DENIED as to the deposition.

Plaintiff maintains, however, that further responses are necessary to Requests for Production No. 2, 3, 5, and 8, as well as the supplemental request promulgated under Code of Civil Procedure § 2031.050. This discovery is as follows:

·       Request No. 2 sought time entry reports for laborers beginning in January 2017, to which Defendant responded with objections based on overbreadth, privacy, duplication of earlier discovery, and the failure to grant a requested extension of time in which to respond;

·       Request No. 3 sought wage statements for laborers from January 2017, to which Defendant offered the same objections;

·       Request No. 5 sought documents reflecting the stop and start times of laborers beginning in January 2017, to which Defendant offered the same objections;

·       Request No. 8 sought GPS data reflecting the movement of laborers, to which Defendant offered the same objections.

Additionally, the supplemental request promulgated under Code of Civil Procedure § 2031.050 sought any new information responsive to prior requests for production, to which Defendant responded with objections, along with the assurance that it would produce updated wage statements and time-cards. (Separate Statement at pp. 2–7.)

Plaintiff argues that the above requests are supported by good cause, and that in addition to Defendant’s promised supplemental production, Defendant ought to produce documents in the same categories as those previously ordered produced by this court on October 18, 2018, including Defendant’s Aspire management software, GPS data, and wage statements. (Separate Statement at p. 7.) 

Defendant in opposition contends that, as to Requests No. 2 and 3, it has already produced time card reports and wage statements for each worker as of December 19, 2022, and February 14, 2023.(Opposition at p. 5.) As to Request No. 5, concerning meal-break start-and-stop times, Defendant argues that Plaintiff’s case does not concern meal breaks, and in any event that Wage Order No. 5 does not require an employer to keep records of “[m]eal periods during which operations cease.” (Opposition at pp. 6–7, citing Wage Order No. 5, § 7.) Defendant also contends that it is attempting to secure the GPS data from the third-party vendor who controls it. (Opposition at pp. 4, 7.)

Plaintiff in reply contends that Defendant should be ordered to comply with its assurances that it will produce GPS data. (Reply at p. 3.) Additionally, Plaintiff argues that Defendant’s production of wage statements and time card reports show only the total hours worked, and do not identify the locations of the work performed, as would be revealed in the documents sought under Request No. 2, namely Defendant’s Aspire Management records. (Reply at p. 3.) Plaintiff also disputes that Defendant has produced wage statements for each worker, and argues that Defendant has only produced a spreadsheet containing information that might otherwise be included on a wage statement. (Reply at p. 6.) Additionally, Plaintiff argues that whether Defendant ceases operations during meal breaks is a matter which Defendant’s records may illuminate. (Reply at p. 7.)

Further responses are necessary as to the requests for production. Defendant acknowledges not having produced all responsive documents called for, including GPS records, and Plaintiff attests that additional documents reflective of wage statements and location data have not been produced. Additionally, Defendant’s contention that it need not maintain records regarding meal periods is contingent on the assertion that it ceases operations during these times, which is not supported by evidence in Defendant’s moving papers.

Defendant finally argues that Plaintiff did not adequately meet and confer before filing this motion. (Opposition at pp. 7–8.) However, the record reflects several efforts to meet and confer regarding the requests for production, including among the agreed-upon measures a continuance of trial and discovery deadlines to allow for further production. (Bechtel Decl. ¶¶ 9–16.)

Accordingly, the motion is GRANTED as to the Requests for Production, Set Four and Supplemental, and is otherwise DENIED.

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 $6,230.00 in sanctions, representing 14 hours of attorney work at $445 per hour. (Bechtel Decl. ¶ 18.) Here, Defendant’s opposition to the motion was made with substantial justification, and earnest efforts have been made to comply with Defendant’s discovery obligations. Accordingly, no sanctions are awarded.