Judge Lynette Gridiron Winston, Case Number: 22PSCV00477, Date: 2024-05-01 Tentative Ruling

Judge: Lynette Gridiron Winston, Case: 22PSCV00477, Date: 2024-05-01 Tentative Ruling

Case Number: 22PSCV00477 Hearing Date: May 1, 2024 Dept: 6

CASE NAME: Amilkar Frausto v. Arch Telecom, Inc.

1. Plaintiff Amilkar Frausto’s Motion to Compel Responses to Requests for Production, Set One;

2. Plaintiff Amilkar Frausto’s Motion to Compel Responses to Special Interrogatories (Set One);

3. Plaintiff Amilkar Frausto’s Motion to Compel Responses to Form Interrogatories – General (Set One);

4. Plaintiff Amilkar Frausto’s Motion to Compel Responses to Form Interrogatories – Employment (Set One); and

5. Plaintiff Amilkar Frausto’s Motion to Deem the Truth of Matters Specified in Requests for Admissions, Set One, Admitted and Conclusively Established.

TENTATIVE RULING

The Court GRANTS Plaintiff Amilkar Frausto’s motion to compel responses to Special Interrogatories, Set One, Nos. 1-3, 6-27, 29-33, 35-36, 38-39, 41-42, 44-45, 47-48, 50-51, 62-64, 78, 80, and 82. Defendant Ach Telecom, Inc. must provide verified, code-compliant responses, without objections, to Plaintiff within 30 days of the Court’s order.

The Court GRANTS Plaintiff Amilkar Frausto’s motion to compel responses to Form Interrogatories – Employment Law, Set One, 209.2 and 211.1. Defendant Ach Telecom, Inc. must provide verified, code-compliant responses, without objections, to Plaintiff within 30 days of the Court’s order.

The Court GRANTS Plaintiff Amilkar Frausto’s motion to compel responses to Requests for Production, Set One, Nos. 2-7, 10, 11, 13-15, 29, 30, 35-39, 47, and 50. Defendant Ach Telecom, Inc. must provide verified, code-compliant responses, without objections, and produce all responsive documents to Plaintiff within 30 days of the Court’s order.

The Court DENIES Plaintiff Amilkar Frausto’s motion to compel responses to Form Interrogatories – General, Set One.

The Court DENIES Plaintiff Amilkar Frausto’s motion to deem the truth of matters specified in Requests for Admissions, Set One, admitted and conclusively established.

The Court GRANTS Plaintiff Amilkar Frausto’s requests for monetary sanctions in the reduced amount of $1,311.65 per motion, comprised of 1.0 hour preparing each motion, 1.0 hour for reviewing each opposition and preparing each reply, and 0.5 hours for attending the hearing on the motions, for a total of 2.5 hours, multiplied by a reduced hourly rate of $500.00, plus the $61.65 filing fee for each motion.

Plaintiff is ordered to give notice of the Court’s ruling within five calendar days of this order.

BACKGROUND

This is a Private Attorneys General Act employment action. On May 19, 2022, plaintiff Amilkar Frausto (Plaintiff) filed this action against defendant Arch Telecom, Inc. (Defendant) and Does 1 through 50, alleging causes of action for failure to provide employment records, overtime/double time, meal/rest breaks, minimum wage, accurate/itemized wage statements, reporting time, split shifts, all wages paid on time, all wages paid on discharge/termination, failure to reimburse, and seeking civil penalties.

On January 8, 2024, Plaintiff moved to compel responses to written discovery and to deem the truth of matters admitted. On April 17, 2024, Defendant opposed the motions. On April 24, 2024, Plaintiff replied.

LEGAL STANDARD

When a party fails to serve a timely response to interrogatories, the party propounding the interrogatories may move for an order compelling a response. (Code Civ. Proc., § 2030.290, subd. (b).) A party who fails to provide a timely response waives any objection, including one based on privilege or work product. (Id., § 2030.290, subd. (a).) “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 interrogatories, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Id., § 2030.290, subd. (c).)

When a party fails to serve a timely response to an inspection demand, the party making the demand may move for an order compelling a response to the inspection demand. (Code Civ. Proc., § 2031.300, subd. (b).) A party who fails to provide a timely response waives any objection, including one based on privilege or work product. (Code Civ. Proc., § 2031.300, subd. (a).) “[T]he 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 inspection, copying, testing, or sampling, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Id., § 2031.300, subd. (c).)

When a party fails to serve a timely response to a request for admission, the party propounding the request for admission may move for an order to deem the genuineness of any documents and the truth of any matters specified in the requests admitted. (Code Civ. Proc., § 2033.280, subd. (b).) A party who fails to provide a timely response waives any objection, including one based on privilege or work product. (Id., § 2033.280, subd. (a).) “The court shall make this order, unless it finds that the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with Section 2033.220. It is mandatory that the court impose a monetary sanction… on the party or attorney, or both, whose failure to serve a timely response to requests for admission necessitated this motion.” (Id., § 2033.280, subd. (c).)

DISCUSSION

Meet and Confer

Although meeting and conferring is not required before bringing motions to compel, (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 404), Plaintiff indicates having attempted to informally resolve this matter before bringing these motions, (Gonzalez Decls., ¶ 4).

Analysis

Plaintiff served written discovery on Defendant on March 14, 2023, comprised of Special Interrogatories, Set One, Form Interrogatories – General, Set One, Form Interrogatories – Employment Law, Set One, Requests for Production, Set One, and Requests for Admission, Set One. (Gonzalez Decls., ¶ 2.) Despite having granted multiple extensions, Defendant failed to timely serve responses. (Id., ¶¶ 3-4.)

In opposition, Defendant contends the motions are now moot because it served responses on Plaintiff on April 15, 2024 and must be denied as such. (Chen Decls., ¶ 5.) Defendant further contends Plaintiff’s requests for sanctions should be denied since it provided responses. Defendant contends the lack of responses was due to Defendant’s prior counsel having left the firm and the oversight having been discovered thereafter. (Id., ¶¶ 3-6.)

In reply, Plaintiff acknowledges Defendant provided responses, but contends many of those responses contain improper objections and impermissibly cite documents in lieu of providing substantive responses. (Gonzalez Reply Decls., Ex. A.) Plaintiff contends the motions should still be granted as to those particular responses, and further contends that sanctions are still appropriate. But, the Court notes that Plaintiff does not contend there are any substantive problems with Defendant’s responses to Requests for Admissions, Set One, and Form Interrogatories – General, Set One, and instead contends only that sanctions are still appropriate.

The Court agrees with Plaintiff. First, Defendant concedes having provided untimely responses to Plaintiff’s written discovery requests. (Chen Decls., ¶ 5.) Defendant therefore waived the right to object to Plaintiff’s discovery requests and cite to documents in lieu of providing substantive responses. (Code Civ. Proc., § 2030.290, subd. (a); Id., § 2031.300, subd. (a); Id., § 2033.280, subd. (a).) Second, the mere fact that Defendant provided responses shortly before the hearing on these motions does not render these motions moot or otherwise deprive the Court of the ability to rule on them. (Sinaiko Healthcare Consulting, Inc., supra, 148 Cal.App.4th at p. 404.) Third, given Defendant’s waiver of rights for failure to timely respond, Defendant provided many improper responses containing objections and citations to documents in lieu of substantive responses. (See Gonzalez Reply Decls., Ex. A; Code Civ. Proc., § 2030.290, subd. (a); Id., § 2031.300, subd. (a); Id., § 2033.280, subd. (a).)

Based on the foregoing, the Court GRANTS Plaintiff’s motions to compel responses to:

1. Special Interrogatories, Set One, Nos. 1-3, 6-27, 29-33, 35-36, 38-39, 41-42, 44-45, 47-48, 50-51, 62-64, 78, 80, and 82;

2. Form Interrogatories – Employment Law, Set One, 209.2 and 211.1; and

3. Requests for Production, Set One, Nos. 2-7, 10, 11, 13-15, 29, 30, 35-39, 47, and 50.

Given that Plaintiff did not raise any issues with respect to Defendant’s responses to Requests for Admissions, Set One, and Form Interrogatories – General, Set One, the Court infers Defendant’s responses were not otherwise improper, other than for being untimely. Therefore, the Court DENIES Plaintiff Amilkar Frausto’s motion to compel responses to Form Interrogatories – General, Set One. The Court also DENIES Plaintiff Amilkar Frausto’s motion to deem the truth of matters specified in Requests for Admissions, Set One, admitted and conclusively established.

With respect to monetary sanctions, the Court GRANTS Plaintiff Amilkar Frausto’s requests for monetary sanctions in the reduced amount of $1,311.65 per motion, comprised of 1.0 hour preparing each motion, 1.0 hour for reviewing each opposition and preparing each reply, and 0.5 hours for attending the hearing on the motions, for a total of 2.5 hours, multiplied by a reduced hourly rate of $500.00, plus the $61.65 filing fee for each motion. The Court reduced the hourly rate from $725.00, finding it excessive for the relevant legal community. (See 569 E. Cnty. Boulevard LLC v. Backcountry Against the Dump, Inc. (2016) 6 Cal.App.5th 426, 436–437 [“The courts repeatedly have stated that the trial court is in the best position to value the services rendered by the attorneys in his or her courtroom [citation], and this includes the determination of the hourly rate that will be used in the lodestar calculus. [Citation.]”])

CONCLUSION

The Court DENIES Plaintiff Amilkar Frausto’s motion to compel responses to Form Interrogatories – General, Set One.

The Court DENIES Plaintiff Amilkar Frausto’s motion to deem the truth of matters specified in Requests for Admissions, Set One, admitted and conclusively established.

Plaintiff is ordered to give notice of the Court’s ruling within five calendar days of this order.