Judge: Malcolm Mackey, Case: 21STCV36270, Date: 2023-05-01 Tentative Ruling
Case Number: 21STCV36270 Hearing Date: May 1, 2023 Dept: 55
EDWIN
KWON, M.D. VS PERRY LIU, M.D., 21STCV36270
Hearing Date: 5/1/23,
Dept. 55.
#add-on: MOTION TO COMPEL DISCOVERY RESPONSES AND
PRODUCTION OF DOCUMENTS, DEFENDANT PERRY LIU, MD’S DEPOSITION, AND FOR SANCTIONS.
Notice: Okay
Opposition
MP:
Plaintiff
RP:
Defendants
Summary
On 10/1/21, Plaintiff filed a Complaint alleging that this
is an employment and breach of contract action against his joint employers as defendants,
where Plaintiff is a cosmetic surgeon who worked for Defendants’ medical spa,
and was promised by LIU to be paid a yearly salary of $300,000, 30% of the
business’s profits, and an option for equity in the business, but Plaintiff was
only paid a total of $150,000.
The causes of action are:
1. BREACH OF WRITTEN
CONTRACT;
2. BREACH OF ORAL AND/OR
IMPLIED-IN-FACT CONTRACT;
3. PROMISSORY ESTOPPEL;
4. BREACH OF THE IMPLIED
COVENANTS OF GOOD FAITH AND FAIR DEALING;
5. UNJUST ENRICHMENT AND
RESTITUTION;
6. NONPAYMENT OF WAGES IN
VIOLATION OF LABOR CODE § 201, 202, 218;
7. FAILURE TO REIMBURSE
REQUIRED BUSINESS EXPENSES IN VIOLATION OF LABOR CODE § 2802;
8. PENALTIES FOR FAILURE
TO PAY EARNED WAGES UPON DISCHARGE IN VIOLATION OF LABOR CODE § 203;
9. PENALTIES FOR FAILURE
TO PROVIDE WAGE STATEMENTS IN VIOLATION OF LABOR CODE §226;
10. PENALTIES FOR LABOR
CODE VIOLATIONS PURSUANT TO CALIFORNIA LABOR CODE §§2698,ET SEQ.;
11. INTENTIONAL
MISREPRESENTATION;
12. NEGLIGENT
MISREPRESENTATION;
13. NEGLIGENCE;
14. CONVERSION;
15. SEXUAL HARASSMENT IN
VIOLATION OF FEHA;
16. UNLAWFUL AND UNFAIR
BUSINESS PRACTICES IN VIOLATION OF BUS. AND PROF. CODE § 17200, ET SEQ.
MP
Positions
Moving party requests an order compelling defendants’
to further respond to document requests, form and special interrogatories and
admission requests, to provide privilege logs, and to attend a deposition, plus
an order imposing monetary sanctions, on grounds including the following:
·
All of the requests at issue seek
documents and information pertaining to either Defendants’ business records or
communications about the events detailed in the Complaint, all of which Defendants
failed to produce or address.
·
Defendants produced zero documents to
date, excusing that by the contention as if Plaintiff worked for another
entity, which is false.
·
Defendants’ responses raised patents’ HIPPA
and other privacy-concerns. In response, Plaintiff proposed a draft of a
Protective Order.
·
Defendants have not provided their
availability for this deposition as repeatedly requested. Plaintiff needs the further document
responses, before the deposition.
·
Defendants’ financial records, including
their QuickBooks records, accounts’ payable, accounts’ receivable, and other
bookkeeping and financial records are probative on these disputed issues. Whether Defendants had the ability to pay
Plaintiff and whether Defendants generated profit that Plaintiff was entitled
to are directly at issue in this case. [Complaint at ¶31.] Plaintiff is also
owed money for the procedures that he performed on his own behalf and for which
he funneled the proceeds to Defendants as a loan. [Id. at ¶¶ 48-50]
·
Requests seek documents regarding
Defendants’ internal records including hiring policies and procedures (RPD No.
13), reports of internal grievances and disputes.
·
Reports generated by Nextech are relevant
and/or reasonably calculated to lead to admissible evidence as to Defendants’
patient flow (and therefore overall profitability) and as to whether Defendants
recorded all the services rendered. The Nextech records will also allow
Plaintiff to determine how much money Plaintiff loaned to Defendants by
identifying the names of patients for which he performed services and then
funneled the proceeds to Avant.
·
RPDs Nos. 22 and 23 request communications
between Defendants and any person (RPD No. 23) or affiliate of Avant (RPD No. 22),
such as employees, relating to Plaintiff. The request does not seek any
documents covered by the attorney-client privilege or work product doctrine.
·
Information regarding who Pacific hired
between January 2018 and when it merged with Avant Aesthetic Institute is
certainly relevant and/or reasonably calculated to lead to admissible evidence
to Plaintiff’s case because Plaintiff was affiliated with Pacific during these
times and Plaintiff alleges that Liu’s hiring decisions were detrimental to the
Corporate Defendants income to which he was entitled to a portion of.
·
Special interrogatories include requests
as to how defendants set up payroll, payments from payments and insurers, employee
instructions, hiring and retention.
·
Form interrogatories and admission
requests include similar requests.
RP
Positions
Opposing parties advocate denying, and imposing $8694.00
in sanctions, for reasons including the following:
·
The motion must be denied as untimely,
because it was not completely filed until after the agreed extension to
2/24/23, since documents were filed after.
Because of service electronically after 6:00 p.m., Plaintiff’s service
of moving papers at just before midnight on February 24 and then on Saturday,
February 25, 2023 are to be deemed served as of Monday, February 27, 2023,
pursuant to the agreement the parties reached.
·
The motion combines discovery requests:
o
Plaintiff seeks to compel further
responses to Requests for Production of Documents, Nos. 4, 10-16, 19-23 to
multiple defendants.
o
Plaintiff seeks to compel further
responses to Requests for Production of Documents, Nos. 1, 3, 13, to Defendant PAEI.
o
Plaintiff seeks further responses to
Special Interrogatories, Nos. 7-9, 13-15, 25-27, 28, 29-31, 35-43 to multiple
defendants.
o
Plaintiff seeks further responses to
Requests for Admission, Nos. 15, 19, 23, and 21 to multiple defendants.
o
Plaintiff seeks further responses to Form
Interrogatories – Employment Law, Nos. 211.2, 211.3, 216.1, and 217.1 to
multiple defendants.
o
Plaintiff’s seeks production of a
privilege log from multiple defendants.
o
Plaintiff seeks to compel the deposition
of Dr. Liu to take place after receipt of further discovery responses.
·
Plaintiff has sued upon nonexistent
agreements.
·
There is no reason for Plaintiff to
recover private patient records.
·
Plaintiff has no legitimate need for
learning whether various corporate entities knew whether Dr. Liu had “a
romantic interest” in an employee of one of the defendants.
·
If Plaintiff had proceeded with the
offered January 24, 2023 deposition date, and not foreclosed deposition pending
the production of documents that he has no right to receive, the deposition
attendance would have been informally resolved.
Tentative
Ruling
The motion is denied.
The opposing parties’ request for monetary sanctions
is denied, due to substantial justification for some positions of each side.
Timeliness
The informally extended (by email) deadline of 2/24/23
for filing the motion, was missed, including because Plaintiff admits that the
separate statement was served and filed on 2/25/23.
Furthermore, the extended 45-day deadline to file the
motion for further document requests is not extended by 2 days for electronic
service, including because the deadline was not caused by any filed or served
document, but by the email of meet-and-conferring and informally agreeing to
extend to a date certain.
Parties can stipulate in writing to extend the 45-day
discovery deadline. CCP §3031.300(c). Motions to compel further responses as to
interrogatories and document requests must be served 45 days from the date of
the original or supplemental responses.
CCP §§2030.300(c). The 45-day
limitation to move to compel further responses as to interrogatories and
document requests is jurisdictional, and courts are without authority to rule
on untimely motions to compel except just to deny them. Sexton v. Sup. Ct. (1997) 58 Cal. App.
4th 1403, 1410; Sperber v. Robinson
(1994) 26 Cal. App. 4th 736, 746 (later motion did not relate back to earlier
motion taken off calendar); Standon
Co. v. Sup. Ct. (1990) 225 Cal. App. 3d 898, 902. The failure to file a timely motion to compel
further responses to unsatisfactory discovery responses constitutes a waiver of
an ability to obtain further responses. Saxena
v. Goffney (2008) 159 Cal.App.4th 316, 333.
The 45-day time limit to move to compel further discovery responses runs
upon service of verified responses, as to mixed responses having factual responses
and objections. Golf & Tennis Pro
Shop, Inc. v. Sup.Ct. (2022) 84 Cal.App.5th 127, 136.
“Any period of notice, or any right or duty to do any
act or make any response within any period or on a date certain after the
service of the document, which time period or date is prescribed by statute or
rule of court, shall be extended after service by electronic means by two court
days….” CCP § 1010.6(a)(3)(B).
Service and filing of an otherwise timely motion
within a statutory deadline, becomes untimely where required supporting papers
were untimely filed and served. Weinstein
v. Blumberg (2018) 25 Cal. App. 5th 316, 318 (addressing deadline applicable to motion to
compel discovery).
When no separate statement was filed with a discovery
motion, the matter may be ordered off calendar.
BP Alaska Exploration, Inc. v. Sup. Ct. (1988) 199 Cal.App.3d
1240, 1270. See also CRC Rule 3.1345
(requirements of discovery separate statements).
Referee
Because the motion is untimely beyond the
jurisdictional deadline, the Court need not address the remaining issues.
However, for the rest, the Court would have considered
appointing a discovery referee, because the motion has combined unusually massive
and voluminous discovery requests, involving several serious types of objections,
like patients’ and employees’ medical and financial privacy, which would be
very time-consuming to decide soundly.
Generally, parties can be ordered to have motions
heard by discovery referees, subject to paying shares of the fees, recoverable as costs. E.g., Baker-Hoey
v. Lockheed Martin Corp. (2003) 111 Cal. App. 4th 592, 604-05 (addressing
appointed discovery referee).
Discovery
Objections
Moving party incorrectly contends that employees’ and
patients’ privacy rights are quickly solved by a parties’ stipulated protective
order. But parties need to be notified
and allowed to have any objections considered by the Court.
Third parties must be notified (e.g., by letter or
e-mail) and given an opportunity to either consent or object, before discovery
responses revealing their private information, and parties cannot waive such
rights of third parties. Belaire-West
Landscape, Inc. v. Sup. Ct. (2007) 149
Cal.App.4th 554, 561-62; Pioneer
Electronics (USA), Inc. v. Sup. Ct. (2007) 40 Cal.4th 360, 374-75; DOE 2 v. Sup. Ct. (2005) 132 Cal.App.4th
1504, 1521.
Parties’ protective orders may not avoid privacy
concerns where privacy interests outweigh countervailing interests, and it
would not be the most minimum intrusion needed.
Planned Parenthood Golden Gate v. Sup. Ct. (2000) 83 Cal. App.
4th 347, 369, disapproved on other grounds by Williams
v. Sup. Ct. (2017) 3 Cal. 5th 531, 557.
Third parties must be notified (e.g., by letter or e-mail) and given an
opportunity to either consent or object, before discovery responses revealing
their private information, and parties cannot waive such rights of third
parties. Belaire-West Landscape, Inc. v. Sup. Ct. (2007) 149 Cal.App.4th 554, 561-62; Pioneer Electronics (USA), Inc. v. Sup. Ct.
(2007) 40 Cal.4th 360, 374-75; DOE 2
v. Sup. Ct. (2005) 132 Cal.App.4th 1504, 1521.
Further, defendants should have an opportunity to
support some objections, if the Court were to address the merits instead of
just lateness.
Failures to provide a privilege log or set forth
specific privilege objections are not grounds for finding waivers of the
objections. Korea Data Systems Co. v.
Sup. Ct. (1997) 51 Cal.App.4th 1513, 1516-17.
Judges must act to protect trade secrets by reasonable
means including protective orders, in camera hearings, sealing records and
restricting disclosure. CC §3426.5; Hypertouch, Inc. v. Sup. Ct. (2005)
128 Cal. App. 4th 1527, 1555 n. 16.
Merits
The opposition improperly raises the contention that
Plaintiff worked for another entity, because discovery does not relate to the
merits of the complaint allegations.
“In pursuing such discovery, the strength or weakness
of the plaintiff's individual claim is immaterial….” Williams v. Sup. Ct. (2017) 3 Cal.5th
531, 551. “[T]he statutory scheme
imposes no obligation on a party propounding interrogatories to establish good
cause or prove up the merits of any underlying claims.” Williams v. Sup. Ct. (2017) 3 Cal.5th
531, 550. Parties requesting discovery
information are not first required to prove that it would be relevant and
admissible. Alch v. Sup. Ct.
(2008) 165 Cal.App.4th 1412, 1429-31. “[T]o
show the merits of one's case has never been a threshold requirement for
discovery….” Williams v. Sup.Ct.
(2017) 3 Cal.5th 531, 558. The right to discovery does not depend on the
status of the pleadings, including where a complaint is vulnerable to a
demurrer. Mattco Forge, Inc. v.
Arthur Young & Co. (1990) 223 Cal.App.3d 1429, 1436. “‘When
disputed facts provide a basis for the exercise of discretion, those facts
should be liberally construed in favor of discovery.’” Zellerino v. Brown (1991) 235 Cal.App.3d 1097, 1108-09.
Sanctions
As analyzed above, both
sides are partly right and partly wrong, such that sanctions should not be
awarded.
Generally, monetary
sanctions are mandatory as to parties losing discovery motions, unless courts
find substantial justification or other injustice. E.g.,
Foothill Properties v. Lyon/Copley Corona Assocs., L.P.
(1996) 46 Cal.App.4th 1542, 1557-58. “ ‘[S]ubstantial justification”
has been understood to mean that a justification is clearly reasonable because
it is well-grounded in both law and fact.”
Doe v. U.S. Swimming, Inc. (2011) 200 Cal.App.4th 1424, 1434. “If the party seeking a monetary sanction meets
its burden of proof, the burden shifts to the opposing party attempting to
avoid a monetary sanction to show that it acted with ‘substantial
justification.’ ” Doe v. U.S.
Swimming, Inc. (2011) 200 Cal.App.4th 1424, 1435.