Judge Holly J. Fujie, Case Number: 21STCV27498, Date: 2023-10-11 Tentative Ruling

DEPARTMENT 56 JUDGE HOLLY J. FUJIE, LAW AND MOTION RULINGS. The court makes every effort to post tentative rulings by 5.00 pm of the court day before the hearing. The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)], and are also available in the courtroom on the day of the hearing [see CRC 3.1308(b)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) call Dept 56 by 8:30 a.m. on the day of the hearing (213/633-0656) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no telephone call is necessary and all parties should appear at the hearing in person or by Court Call. Court reporters are not provided, and parties who want a record of motions and other proceedings must hire a privately retained certified court reporter.

MOVING PARTIES: Defendants 91 Enterprise, LLC; Asher Elimelech; and Gilad Erlich (collectively, “Moving Defendants”)

This action arises out of an employment relationship. The currently operative first amended complaint (the “FAC”) alleges: (1) failure to pay minimum wage; (2) failure to pay overtime compensation; (3) failure to pay wages for missed rest periods; (4) failure to pay wages when due; (5) failure to provide accurate and itemized wage statements; and (6) violation of the Unfair Competition Law.

On September 18, 2023, Moving Defendants each filed a motion to compel Plaintiff’s responses to Form Interrogatories, Set One (“FROGS”) (collectively, the “Motions”).[1]

Under California Code of Civil Procedure (“CCP”) section 2030.290, subdivision (b), when a party directs interrogatories towards a party and that party fails to serve a timely response, the party propounding the interrogatories may move for an order compelling response to the interrogatories. (CCP § 2030.290, subd. (b).) The moving party need only show that the interrogatories were served on the opposing party, the time has expired to respond to the interrogatories, and no responses have been served in order for the court to compel the opposing party to respond. (Leach v. Superior Court (1980) 111 Cal.App.3d 902, 906.)

Moving Defendants provide evidence that they propounded the FROGS on July 31, 2023. (Declaration of Benjamin Davidson (“Davidson Decl.”) ¶ 3, Exhibit 1.)[2] On September 1, 2023, the date responses were due, Plaintiff’s counsel requested that the deadline be extended through September 6, 2023, which Moving Defendants confirmed. (See Davidson Decl. ¶¶ 5-8, Exhibit 2.) On September 6, 2023, Moving Defendants also confirmed Plaintiff’s counsel’s request to further extend the deadline to submit responses until September 8, 2023 due to illness. (See Davidson Decl. ¶ 9, Exhibit 2.) At the end of the business day on September 8, 2023, Plaintiff’s counsel sent an email stating that she tested positive for the COVID-19 virus and requested an extension through September 12, 2023. (See Davidson Decl. ¶¶ 11-13, Exhibit 4.) Moving Defendants’ counsel responded and informed Plaintiff’s counsel that a third extension would not be granted. (See id.)

In support of the opposition (the “Opposition”), Plaintiff provides evidence that Plaintiff’s counsel went to the emergency room to obtain medical care for her illness on September 10, 2023, and was too sick to work on September 12 through September 13, 2023. (Declaration of Charmaine L. Huntting ("Huntting Decl.") ¶¶ 4, 6.) Plaintiff provided responses to the FROGs on December 7, 2023. (Huntting Decl.) ¶ 11, Exhibit 4.)

It is undisputed that Plaintiff has provided Moving Defendants with verified responses to the discovery requests at issue in the Motions. To the extent that the parties dispute the sufficiency of Plaintiff’s responses, the proper procedures are to file a motion for relief from waiver and/or a motion to compel further responses. The Court therefore DENIES the Motions. In light of the circumstances that caused Plaintiff’s responses to be served past the deadline, the Court also declines to impose monetary sanctions.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

[1] Moving Defendants also filed motions to compel responses to Requests for Admissions, Set One (“RFAs”) (the “RFA Motions”). On January 9, 2024, Moving Defendants filed a notice of their intent to remove the RFA Motions from the Court’s calendar.

[2] The Motions are based on the same underlying facts.