Judge Lee W. Tsao, Case Number: 23NWCV01923, Date: 2023-10-26 Tentative Ruling

Judge: Lee W. Tsao, Case: 23NWCV01923, Date: 2023-10-26 Tentative Ruling

Case Number: 23NWCV01923 Hearing Date: April 9, 2024 Dept: C

Tawana Jean Cooper vs Octapharma Plasma, Inc., et al.

Case No.: 23NWCV01923

Hearing Date: April 9, 2024 @ 9:30 AM

Tentative Ruling

Plaintiff Tawana Jean Cooper’s Motion to Compel Responses to Requests for Production of Documents (Set Two) is DENIED. No sanctions are imposed.

Defendant to give notice.

Background

Plaintiff Tawana Jean Cooper (“Plaintiff”) sues for employment discrimination, among other causes of action, related to her job as a part-time medical screener for Defendant Octapharma Plasma, Inc. (“Defendant”).

The operative First Amended Complaint (“FAC") was filed on July 3, 2023. On October 5, 2023, Plaintiff served her Request for Production of Documents (Set Two). Defendant OPI served responses on November 6, 2023. In this motion to compel, Plaintiff argues the responses were unverified and, therefore, untimely. (Cooper Decl., ¶ 8.)

Legal Standard

A party may make a demand for production of documents and propound interrogatories without leave of court at any time 10 days after the service of the summons on, or appearance by, the party to whom the demand is directed, whichever occurs first. (Code Civ. Proc., § 2031.020, subd. (b); Code Civ. Proc., § 2030.020, subd. (b).) The demand for production of documents is not limited by number, but the request must comply with the formatting requirements in Code of Civil Procedure section 2031.030.

The party whom the request is propounded upon is required to respond within 30 days after service of a demand, but the parties are allowed to informally agree to an extension and confirm any such agreement in writing. (Code Civ. Proc., § 2031.060, subd. (a); Code Civ. Proc., § 2030.060, subd. (a); Code Civ. Proc., § 2031.070, subd. (a) - (b); Code Civ. Proc., § 2030.070, subd. (a) - (b).)

If a party fails to timely respond to a request for production or interrogatories, the party to whom the request is directed waives any right to exercise the option to produce writings under Code Civ. Proc., § 2030.230, and waives any objection, including one based on privilege or on the protection for work product. (Code Civ. Proc., § 2031.300, subd. (a); Code Civ. Proc., § 2030.290, subd. (a).)

Discussion

Plaintiff argues that there are several inadequacies in the responses to the request for production namely: (1) that the responses are unverified due to the oath requirement only being on a verification page; (2) that the responses are not Code compliant because they are based on “information and belief.”

Verification

Under CCP § 2031.250(b), if the party to whom a demand is directed is “a public or private corporation or a partnership or association or governmental agency, one of its officers or agents shall sign the response under oath on behalf of that party.” Plaintiff argues that CCP § 2031.250(b) should be interpreted to mean that if the oath is on the verification page, and not on the response itself, the response should be deemed unverified. However, the Code’s oath requirement is typically satisfied by a signature on the verification page. The Code only requires responding party to “sign the response under oath.” (Code Civ. Proc., §2031.250, subd. (a).) In practice, the responding party may sign a verification form attached or inserted at the end of the answers stating that that the party: “certify and declare under penalty of perjury under the laws of the State of California that the foregoing answers are true and correct.” (See CCP § 2015.5.) (Wiel & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2020) ¶ 8:1103; see also Cal. Judges Benchbook: Civil Proceedings – Discovery (CJER Sept. 2022) Inspection Demands, § 19.15.)

Here, the verification form is signed by Defendant’s Senior Manager for Human Resources, Karen Singletary, on November 6, 2023. (Horner Decl., ¶ 4, Ex. B.) Accordingly, the response is verified.

Information and Belief

Plaintiff also asserts that an affidavit based on information and belief is hearsay and must be disregarded.

Plaintiff cites to Frankin v. Nat C. Goldstone Agency (1949) 33 Cal.2d 628, 631 and Judd v. Superior Court (1976) 60 Cal.App.3d 38 for the proposition that affidavits based on information and belief are hearsay and must be disregarded. These cases are inapposite. In Franklin, the affidavit in question related to claims regarding the arbitration process, and in Judd the affidavit in question related to whether the Court had personal jurisdiction over the respondent. Neither case involves an affidavit relating to the discovery process.

The Court finds that Perry v. Kia Motors America, Inc. (2023) 91 Cal.App.5th 1088 is more analogous to the instant facts. Corporate discovery responses that necessarily encompass the collective knowledge of numerous individuals may be verified on information and belief. (Ibid., at 1097.) In Perry, the Court reasoned that “It is common sense when discovery requests are propounded on a business, particularly a large business, no single person is likely to have personal knowledge of everything the business collectively knows.” (Ibid.) Therefore, the business is allowed to appoint an agent and this agent, according to Perry, “does not have personal knowledge of everything included in the responses; the business itself does. Generally, this means the agent will sign the verification based on information and belief. Under such circumstances, ‘information and belief’ is the only realistic way to verify answers on behalf of the entity.” (Ibid.) Here, the agent, Ms. Singletary, was acting as an agent of Defendant and could answer according to information and belief.

Accordingly, the Court finds the responses were properly verified.

Sanctions

Legal Standard

The party who propounded the discovery request may bring a motion to compel and the court shall impose a monetary sanction against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to a demand for production of documents or interrogatories, unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (Code Civ. Proc., § 2031.300, subd. (c); Code Civ. Proc., § 2030.290, subd. (c).)

Plaintiff’s Request for Sanctions

Plaintiff requests sanctions in the amount of $5,000.00 in connection with the cost of filing this motion and willful misuse of discovery. Because the motion is denied, the Court declines to impose sanctions.

The Court also notes that a party litigating in propria person “may not be awarded monetary discovery sanctions based on compensation for time and effort expended as a result of a misuse of the discovery process.” (Argaman v. Ratan (1999) 73 Cal.App.4th 1173, 1180-1181.)

Accordingly, Plaintiff’s request for sanctions is DENIED.

Defendant’s Request for Sanctions

Giving Plaintiff the benefit of the doubt, the Court declines to impose sanctions upon Plaintiff because she appears to have had a good-faith belief, after reading the relevant statutes, that Defendant had not properly verified the responses to production. However, the Court notes that this is the second motion by Plaintiff making essentially the same arguments. Plaintiff’s Motion to Compel Responses to Requests for Production of Documents (Set One) was filed on November 22, 2023 and denied on December 19, 2023. The instant motion was filed on March 8, 2024. Future motions asserting the same grounds may cast doubt upon Plaintiff’s good faith belief in the merit of her arguments. (CCP § 2023.010, subd. (h).)

Defendant’s request for sanctions is DENIED.