Judge: Malcolm Mackey, Case: 19STCV36520, Date: 2023-04-06 Tentative Ruling

Case Number: 19STCV36520    Hearing Date: April 6, 2023    Dept: 55

SOLORIO, v. NARANJO, et al.                                                      19STCV36520

Hearing Date:  4/06/23,  Dept. 55

#7:   MOTION TO COMPEL FURTHER DISCOVERY RESPONSES.

Notice:  Okay

Opposed

MP:  Plaintiff LUIS MANUEL FLORES.

RP:  Defendant ROUGH ROAD TRUCKING

Summary

On 10/11/19, plaintiffs filed a Complaint.

On 3/15/21, plaintiffs filed a First Amended Complaint, alleging that defendants failed to pay their employees for all hours worked, missed meal periods and rest breaks, and committed other wage-and-hour violations.

The causes of action are:

1. FAILURE TO PAY MINIMUM WAGE (Cal. Lab. Code § 1197);

2. FAILURE TO COMPENSATE FOR ALL HOURS WORKED (Cal. Lab. Code § 1198);         

3. FAILURE TO PAY OVERTIME COMPENSATION (Cal. Lab. Code § 1198);

4. FAILURE TO PAY MEAL PERIOD COMPENSATION (Cal. Lab. Code § 226.7);

5. FAILURE TO PAY REST PERIOD COMPENSATION (Cal. Lab. Code § 226.7);

6. FAILURE TO FURNISH ACCURATE WAGE AND HOUR STATEMENTS (Cal. Lab. Code § 226);

7. FAILURE TO PAY WAGES UPON DISCHARGE (Cal. Lab. Code § 201);

8. STATUTORY PENALTIES (Cal. Lab. Code §§ 203 and 558);

9. FAILURE TO INDEMNIFY AND ILLEGAL DEDUCTIONS FROM WAGES (Cal. Lab. Code § 2802);

10. VIOLATION OF LABOR CODE § 1198.5;

11. VIOLATION OF LABOR CODE § 226(c), (e)(1), and (f);

12. CONSTRUCTIVE DISCHARGE;

13. VIOLATION OF THE PRIVATE ATTORNEYS GENERAL ACT OF 2004, CALIFORNIA LABOR CODE § 2698 et seq.;

14. UNFAIR COMPETITION (Business and Professions Code § 17200); and

15. FRAUDULENT TRANSFER (Cal. Civ. Code § 3439.04(a)(1)).

Plaintiff served a Request for Production of Documents, Set One, on November 19, 2021 on Defendant. (Mot., Ex. A, Sarkis Decl., ¶ 3.) No responses were received, forcing Plaintiff to file a motion to compel on June 2, 2022 with a hearing scheduled for November 15, 2022. (Sarkis Decl., ¶ 4.) On October 12, 2022, Defendant served supplemental responses. (Sarkis Decl., ¶ 5.) Plaintiff informed Defendant that those responses were insufficient and Defendant served further supplemental responses on October 31, 2022. (Mot., Ex. B, Sarkis Decl., ¶ 6.)

Plaintiff’s former counsel, Sakis Sirmabekain, informed Defendant that its responses were insufficient because they did not identify all former and present employees of Defendant. Defendant requested that Plaintiff provide a Belaire Notice to protect the privacy rights of the former and present employees whose information Plaintiff seeks. (Amaratunge Decl., ¶ 5.) The parties attempted to meet and confer on November 4, 2022 but could not come to a resolution. (Amaratunge Decl., ¶ 6.) Plaintiff filed this motion on December 21, 2022.

Since the filing of this motion, Sirmabekain has been relieved as Plaintiff’s counsel.

A jury trial is currently scheduled for May 8, 2023.

MP Positions

Plaintiff moves to compel further discovery responses from Defendant Rough Road Trucking to Requests for Production of Documents, Set One. Plaintiff’s motion requests further responses to no’s. 1-14 and 20-36 but his separate statement filed concurrently with his motion requests further responses to no’s. 1-7, 9-13, and 15-19 (17 requests). Therefore, the Court will only analyze the 17 requests for further responses contained in the separate statement.

Plaintiff moves on the grounds that Defendant failed to provide complete timesheets (i.e. actual hours worked) and pay records (i.e. pay stubs), or applicable wage and hour records; Defendant waived objections by failing to serve timely discovery responses; Defendant did not specify the reason for inability to produce, rather, it provided a laundry list of every reason contained in CCP § 2031.230; and PAGA (Labor Code 2698 et seq.) discovery is afforded to Plaintiff per Williams v. Superior Court, 3 Cal.5th 531 (2017).

Plaintiff also seeks sanctions in the amount of $4,261.65 in connection with filing this motion.

RP Positions

Defendant argues that, as far as Plaintiff’s Requests for Production, Set One, are concerned, Defendant provided complete responses, with the exception of information concerning the privacy of third party employees. Regarding documents containing such sensitive information, Defendant states that it would produce those documents pursuant to Plaintiff following a formal Belaire Notice process.

Defendant also argues that sanctions are not merited because there was no misuse of the discovery process. Defendant argues that it was properly acting to protect third party privacy interests by requesting that Plaintiff follow a formal Belaire Notice process.

Meet and Confer

Defendant argues that no proper meet and confer was conducted prior to filing the instant motion.

A propounding party’s motion for an order compelling a further response must be accompanied by a meet and confer declaration.  (Code Civ. Proc., § 2030.300, subd. (b)(1).)  A meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (Code Civ. Proc. § 2016.040.)

Here, the parties made several attempts to resolve the discovery issues through email, but they were unsuccessful. (Amaratunge Decl., Ex. B.) Then, on November 4, 2022, the parties attempted to meet and confer over the phone; however, again they were not able to reach a consensus. (Amaratunge Decl., Ex. C.)

Defendant contends that Plaintiff’s meet and confer efforts were not sufficient because he did not give sufficient information as to how and why the given responses were improper. However, the email exchanges between the parties show that Plaintiff was requesting the names, addresses, and telephone numbers of all witnesses. (Amaratunge Decl., Ex. B.) Defendant stated that it was willing to provide them if Plaintiff send Defendant a proposed stipulation for both parties to execute containing the terms for a Belaire Notice. (Amaratunge Decl., Ex. B.) Plaintiff instead sent the Belaire Notice terms by email. (Amaratunge Decl., Ex. B.)

Given the attempts both sides made to avoid filing this motion, the Court finds that the parties satisfied the meet and confer requirement.

Tentative Ruling

The motion to compel further is granted. Plaintiff’s request for sanctions is denied.

Plaintiff’s Requests for Further Responses

Plaintiff requests further responses for the following requests for production:

•    No. 1: “All DOCUMENTS evidencing or referring to job descriptions for the positions held by PAGA MEMBERS during the PAGA PERIOD.”

•    No. 2: “All DOCUMENTS YOU were required to maintain pursuant to Labor Code §§ 1198.5 & 432, regarding PAGA MEMBERS.”

•    No. 3: “All handbooks, policies, procedures and/or practices YOU required PAGA MEMBERS to follow.”

•    No. 4: “All DOCUMENTS evidencing or referring to time cards, time sheets, automated or computer time sheets, sign-in sheets or any other writings relating to the number of hours PAGA MEMBERS work for YOU.”

•    No. 5: “All paystubs provided to PAGA MEMBERS by YOU.”

•    No. 6: “All paystubs provided to Plaintiff by YOU.”

•    No. 7: “All DOCUMENTS evidencing or referring to work schedules for PAGA MEMBERS.”

•    No. 9: “All DOCUMENTS evidencing or referring to the manner or method in which YOU compensated/compensate the PAGA MEMBERS.”

•    No. 10: “All DOCUMENTS evidencing or referring to YOUR payment of overtime compensation to the PAGA MEMBERS.”

•    No. 11: “All DOCUMENTS evidencing or referring to job descriptions for the positions held by the PAGA MEMBERS.”

•    No. 12: “All DOCUMENTS evidencing or referring to any training YOU provided to the PAGA MEMBERS.”

•    No. 13: “All COMMUNICATIONS between YOU and PAGA MEMBERS.”

•    No. 15: “All agreements between YOU and each staffing agency whose services YOU have utilized during the PAGA PERIOD, if any.”

•    No. 16: “All COMMUNICATIONS between YOU and any of YOUR supervisors during the PAGA PERIOD regarding YOUR overtime practices.”

•    No. 17: “All COMMUNICATIONS between YOU and any of YOUR supervisors during the PAGA PERIOD regarding YOUR meal break practices.”

•    No. 18: “All COMMUNICATIONS between YOU and any of YOUR supervisors during the PAGA PERIOD regarding YOUR REST BREAK practices.”

•    No. 19: “All DOCUMENTS evidencing or referring to YOUR relationship during the PAGA PERIOD to each of the other Defendants named in the present lawsuit.”

In its October 31, 2022 supplemental responses, Defendant repeatedly asserted that the “documents requested by this request seeks documents that protected by an employee’s right to privacy and therefore, Responding party must first obtain permission from these applicable employees prior to divulging their personal employment documents. Responding party invites Requesting party to initiate a Belaire-West Notice so that Responding party can produce the applicable documents.” (Sarkis Decl., Ex. B.)

Plaintiff attempted to provide a loose Belaire Notice via email to Defendant’s counsel. However, Defendant’s counsel requested that Plaintiff proceed with a formal Belaire Notice process. Furthermore, in its opposition to this motion, Defendant reiterates that it is “willing to provide documents in reference to its former and present employees subject to a Belaire Notice preserving employees privacy rights.”

California’s Constitution expressly grants Californians a right to privacy. (Cal. Const., art. I, § 1.) This right is at issue wherever a party’s need for relevant information would require disclosure of third party contact information. ((Williams v. Superior Court (2017) 3 Cal.5th 531) citing County of Los Angeles v. Los Angeles County Employee Relations Com. (2013) 56 Cal.4th 905, 926–932.) The Court of Appeal in Belaire-West Landscape, Inc. v. Superior Court dealt with a plaintiff seeking statewide employee contact information for the preceding five years.  Belaire-West Landscape, Inc. v. Superior Court (2007) 149 Cal.App.4th 554. The Court recognized the privacy interests of the employees but also doubted they would have wished to be withheld from a class action plaintiff who seeks relief for violations of employment laws. Id. As a result, the court upheld the trial court’s decision to order disclosure, subject to employees being given notice of the action, assurance they were under no obligation to talk to the plaintiffs’ counsel, and an opportunity to opt out of disclosure by returning an enclosed postcard. Id.

Here, a Belaire-Notice would similarly alleviate Defendant’s concerns about third party privacy rights.

Accordingly, the Court orders Defendant to provide complete responses to Plaintiff’s Requests for Production, Set One, No.’s 1-7, 9-13, and 15-19, on the condition that Plaintiff provide a formal Belaire Notice.

Plaintiff’s Request for Sanctions

The Court finds that sanctions are not merited as there was no misuse of the discovery process. Defendant was within its rights to request Plaintiff comply with the formal Belaire Notice process before providing private third party information to Plaintiff.

Conclusion