Judge Malcolm Mackey, Case 21STCV07564 2023-03-28 Tentative Ruling

Judge: Malcolm Mackey, Case: 21STCV07564, Date: 2023-03-28 Tentative Ruling

Case Number: 21STCV07564 Hearing Date: March 28, 2023 Dept: 55

ZHICHENG CHEN v. INHERITOR CELL TECHNOLOGY (USA) INC. 21STCV07564

Hearing Date: 3/28/23, Dept. 55

#9: MOTION FOR PROTECTIVE ORDER.

Notice: Okay

Opposition

MP: Defendant YONGQIANG LIU.

RP: Plaintiffs

Summary

On 2/5/21, plaintiffs filed a Complaint alleging that, at the time of plaintiffs’ employment termination, the employer defendants owed them wages, bonuses, PTOs, and business expense reimbursements.

The causes of action are:

(1) FAILURE TO PAY REGULAR WAGES AND MINIMUM WAGES IN VIOLATION OF LABOR CODE §§ 1194, 201, 218.5.

(2) FAILURE TO PAY PAID TIME OFF (“PTOS”) IN VIOLATION OF LABOR CODE § 227.3

(3) FAILURE TO REIMBURSE BUSINESS EXPENDITURES IN VIOLATION OF LABOR CODE § 2802

(4) FAILURE TO PROVIDE ACCURATE WAGE STATEMENTS IN VIOLATION OF LABOR CODE § 226

(5) LIQUIDATED DAMAGES IN VIOLATION OF LABOR CODE § 1194.2

(6) WAITING TIME PENALTIES IN VIOLATION OF LABOR CODE §§ 201 AND 203

(7) RETALIATION IN VIOLATION OF LABOR CODE § 1102.5

(8) RETALIATION IN VIOLATION OF LABOR CODE § 98.6

(9) WRONGFUL DISCHARGE IN VIOLATION OF PUBLIC POLICY

(10) CIVIL PENALTIES FOR VIOLATIONS OF LABOR CODE, PURSUANT TO CALIFORNIA’S PRIVATE ATTORNEY’S GENERAL ACT (“PAGA”), §§ 2699, ET SEQ.

(11) BREACH OF CONTRACT.

MP Positions

Moving party requests a protective order limiting unwarranted special interrogatories beyond 35, and imposing sanctions of $2,985 against Plaintiff’s counsel, on grounds including the following:

· The most recent declaration for additional special interrogatories, in effect, admits that the prior declarations were not Code compliant.

· The prior Declarations for Additional Discovery failed to comply with C.C.P. §2030.050, by the failure to state: “each factor described in Section 2030.040 that is relied on, as well as the reasons why any factor relied on is applicable to the instant lawsuit.”

RP Positions

Opposing parties advocate denying, and imposing sanctions on Defendant Liu in the amount of $6,247.50, on bases including the following:

· Plaintiffs met their burden of justifying the number of interrogatories by making a proper declaration that explains substantially why the number of interrogatories is warranted. (Cal. Code Civ. Proc. §§ 2030.040, 2030.050).

· Plaintiff sent Defendant a Supplemental Declaration on September 6.

· The declarations reference to “individual defendants” was in reference to the complexity of establishing Labor Code Section 558.1 liability on individual as opposed to corporate Defendants. Additionally, in meeting and conferring, Plaintiff’s counsel explained that the declarations reference to “11 causes of action” in the complaint was speaking to the variety of the 11 causes of action ranging from wage and hour claims, to retaliation claims, to PAGA claims. Plaintiff’s counsel explained that due to the fact that there are two separate Plaintiffs, multiple Defendants, including two individual and one corporate defendant, the nature of employment law claims, the PAGA claims alleged, and the total of 11 separate causes of action, that additional discovery was warranted. (Said Decl. ¶ 10).

· On March 7, 2023 in a final attempt to resolve the matter with opposing counsel, Plaintiff sent a third declaration further detailing the need for additional discovery, and reiterating the issues discussed between the parties. (Said Decl. ¶ 16, Exhibit 9).

Tentative Ruling

The motion is denied.

While prior declarations contained a few omissions of statutory requirements, the third declaration for additional interrogatories (opp. exs. 9-10) suffices for statutory compliance, by including each factor relied upon.

Subject to certain exceptions, such as a declaration for additional discovery, parties shall not propound to other parties more than 35 specially prepared interrogatories. Clement v. Alegre (2009) 177 Cal. App. 4th 1277, 1287 (see also CCP §§ 2030.030, 2030.040, 2030.050 and 2030.090). “If the responding party seeks a protective order on the ground that the number of specially prepared interrogatories is unwarranted, the propounding party shall have the burden of justifying the number of these interrogatories.” CCP § 2030.040(b).

Additionally, not attaching the discovery request to a declaration, initially, per CCP Section 2030.050, is harmless error, where moving party shows knowledge what interrogatories the declaration relates to.

Courts may overlook harmless procedural errors made in the papers or proceedings that do not affect substantial rights of parties. CCP §475; Morgan v. AT & T Wireless Services, Inc. (2009) 177 Cal.App.4th 1235, 1252; Reedy v. Bussell (2007) 148 Cal. App. 4th 1272, 1289 ("'Procedural defects which do not affect the substantial rights of the parties do not constitute reversible error….’”); McAllister v. County of Monterey (2007) 147 Cal. App. 4th 253 (court is bound to ignore any ‘defect … in the pleadings or proceedings which, in the opinion of said court, does not affect the substantial rights of the parties.’ ”).

Finally, all sanctions are denied, there being mutual substantial justification for debating the court discretion involved in protective orders.

Orders granting or denying motions for protective orders are reviewed for abuse of discretion. People ex rel. Harris v. Sarpas (2014) 225 Cal. App. 4th 1539, 1552.