Judge: Mel Red Recana, Case: 21STCV07322, Date: 2024-03-01 Tentative Ruling

All rulings shown here are TENTATIVE ONLY, and thus oral argument WILL be heard. All Counsel are still required to attend.

Case Number: 21STCV07322    Hearing Date: March 1, 2024    Dept: 45

Superior Court of California

County of Los Angeles

Hearing date:              March 1, 2024

Moving Party:             Plaintiff Shahab Khangholi

Responding Party:      Defendant Patriot Hyundai of El Monte, LLC

Motion to Compel Further Responses to Plaintiff’s Requests for Production of Documents, Set Two and Request for Monetary Sanctions; Motion to Compel Further Responses to Plaintiff’s Special Interrogatories, Set One  

The Court has considered the moving, opposition, and reply papers.

The Court DENIES Plaintiff’s Motion to Compel Further Responses to Requests for Production, Set Two.

The Court DENIES Plaintiff’s Motion to Compel Further Responses to Special Interrogatories, Set One.

Background

            This is an action arising from Plaintiff Shahab Khangholi (“Plaintiff”) being wrongfully terminated from his position as a finance manager. On February 24, 2021, Plaintiff filed a complaint against Defendant Patriot Hyundai of El Monte, LLC (“Defendant”) and DOES 1 to 10, inclusive, alleging causes of action for: (1) wrongful termination in violation of Labor Code § 1102.5(b), (2) wrongful termination in violation of public policy, (3) failure to pay wages in violation of Labor Code sections 201 and 204.1, (4) violation of Business and Professions Code section 17200, (5) waiting time penalties in violation of Labor Code section 203, (6) negligent infliction of emotional distress, (7) intentional infliction of emotional distress, and (8) violation of Labor Code sections 1198.5 and 432.

            On May 3, 2021, Defendant filed an answer to the complaint.

            On January 27, 2023, Plaintiff filed and served a Motion to Compel Defendant’s Further Responses to Plaintiff’s Requests for Production of Documents, Set Two (the “RPD Motion”) and a Motion to Compel Defendant’s Further Responses to Plaintiff’s Special Interrogatories, Set One (the “Special Interrogatories Motion”) (collectively the “Motions”). Pursuant to the Motions, Plaintiff requests monetary sanctions against Defendant.

            On February 23, 2024, Plaintiff filed and served reply briefs at 9:44 A.M. concerning the Motions stating that “Defendants’ deadline to file and serve an opposition to [P]laintiff’s Motion[s] was due on or before February 16, 2024” and that “no opposition[s] [have] been received by plaintiffs or can be found within the Court’s online electronic system.” (Reply Briefs, p. 2:7-10.)

            On February 23, 2024, Defendant filed and served a combined opposition to the Motions and such opposition was filed at 5:39 P.M. The Court notes that Defendant’s opposition is untimely as “[a]ll papers opposing a motion so noticed shall be filed with the court and a copy served on each party at least nine court days . . . before the hearing.” (Code Civ. Proc., § 1005, subd. (b).) Defendant’s opposition was filed after Plaintiff filed a reply brief concerning the Motions. Although filed and served late, the Court will consider Defendant’s untimely opposition. (Cal. Rules of Court, Rule 3.1300(d).)

            Defendant argues that the Motions are moot because verified supplemental responses were served by Defendant on February 23, 2024. Defendant also argues that monetary sanctions are inappropriate.

            The Court will address both Motions in this one ruling.

Legal Standard

            In California, discovery statutes “must be construed liberally in favor of disclosure unless the request is clearly improper.” (Williams v. Superior Court (2017) 3 Cal.5th 531, 541.) “Under the discovery statutes, information is discoverable if it is unprivileged and is either relevant to the subject matter of the action or reasonably calculated to reveal admissible evidence.” (John B. v. Superior Court (2006) 38 Cal.4th 1177, 1186.) “Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action.” (Ibid.)

On receipt of a response to a demand for inspection, copying, testing, or sampling, the demanding party may move for an order compelling further response to the demand if the demanding party deems that any of the following apply: (1) a statement of compliance with the demand is incomplete; (2) a representation of inability to comply is inadequate, incomplete, or evasive; or (3) an objection to the response is without merit or too general. (Code Civ. Proc. § 2031.310(a)(1)-(3).) A motion brought pursuant to CCP § 2031.310 “shall set forth specific facts showing good cause justifying the discovery sought by the demand.” (Code Civ. Proc. § 2031.310(b)(1).) 

“To establish good cause, a discovery proponent must identify a disputed fact that is of consequence in the action and explain how the discovery sought will tend in reason to prove or disprove that fact or lead to other evidence that will tend to prove or disprove the fact.” (Digital Music News LLC v. Superior Court (2014) 226 Cal.App.4th 216, 224.) “In law and motion practice, factual evidence is supplied to the court by way of declarations.” (Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 224.)

            A party may move for an order compelling a further response to interrogatories where an answer to a particular interrogatory is evasive or incomplete. (Code Civ. Proc., § 2030.300, subd. (a)(1).) A further response to interrogatories may also be compelled where an objection is without merit or is too general. (Code Civ. Proc., § 2030.300, subd. (a)(3).) 

Code Civ. Proc. § 2023.010(d) provides that a misuse of the discovery process is failing to respond or to submit to an authorized method of discovery.  Code Civ. Proc. § 2023.010(h) states that a misuse of the discovery process includes making or opposing, unsuccessfully and without substantial justification, a motion to compel or limit discovery. A court may impose a monetary sanction against a party engaging in the misuse of the discovery process or any attorney advising such conduct under Code Civ. Proc. § 2023.030(a). A court has discretion to fix the amount of reasonable monetary sanctions. (Cornerstone Realty Advisors, LLC v. Summit Healthcare Reit, Inc. (2020) 56 Cal.App.5th 771.)

The RPD Motion

            The Meet and Confer Requirement

            A motion made pursuant to CCP § 2031.310 “shall be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc. § 2031.310(b)(2).) “A meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at informal resolution of each issue presented by the motion.” (Code Civ. Proc. § 2016.040.)

            The Court finds that the meet and confer requirement has been met as to the RPD Motion. Plaintiff’s counsel, Michael O. Azat (“Azat”), sets forth meet and confer efforts to resolve the issues pertaining to discovery at issue in the RPD Motion. (Azat Decl., ¶¶ 4-12.)

            The Procedural Posture of the RPD Motion

            Where responses to discovery are not verified, such responses are deemed to not be responses to the propounded discovery. (Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 635.) “Unsworn responses are tantamount to no responses at all.” (Id. at p. 636.)

            Azat declares that on September 16, 2022, Plaintiff served Defendant by mail with Special Interrogatories, Set One, which contained two separate interrogatory requests, and Request for Production, Set Two, which consisted of four requests seeking specific categories of documents or things. (Azat Decl., ¶ 3; Exhibit A.) Defendant’s deadline to provide responses to Plaintiff’s Request for Production was on or before October 21, 2022; however, no responses were received by Plaintiff’s counsel. (Id.) On November 4, 2022, Defendant provided responses via email, but such responses did not include any verifications for its responses. (Id., ¶ 5; Exhibit C.) The parties met and conferred over the phone because Defendant’s responses either contained assurances that the documents would be produced, but were not, or boilerplate objections. (Id., ¶ 6.) The parties then engaged in further meet and confer efforts regarding defense counsel’s representation that responsive documents would be produced as to RFP Nos. 44 and 45 and Defendant’s objections to RFP Nos. 46 and 47. (Id., ¶¶ 7-8; Exhibits D and E.) The parties further met and conferred and agreed to continue the deadline for Plaintiff to file a motion to compel further responses to January 27, 2023. (Id., ¶¶ 9-11; Exhibits F and G.) Azat declares that “[d]espite further efforts, and as of the date of [P]laintiff’s motion, Patriot Hyundai has not provided any responsive documents to [P]laintiff’s Request for Production Nos. 44 and 45, nor has it agreed to provide supplemental responses and documents to Request for Production Nos. 46 and 47.” (Id., ¶ 12.)

            In support of the opposition to the Motions, Defendant’s counsel, Duncan J. McCreary (“McCreary”), states that on October 21, 2022, Defendant provided full and code-compliant responses to Plaintiff’s discovery requests. (McCreary Decl., ¶ 3.) McCreary states that on February 23, 2024, Defendant served Plaintiff with verified supplemental responses to Plaintiff’s discovery requests. (McCreary Decl., ¶ 7; Exhibit B.)

            The Court finds that when the RPD Motion was filed, Defendant had not yet served verified responses to discovery. As such, Plaintiff should have filed a motion to compel initial responses to his Request for Production of Documents as unsworn responses are tantamount to no response at all under Appleton v. Superior Court, supra, 206 Cal.App.3d 632, 636. Irrespective of such fact, as will be explained below, Plaintiff has not shown good cause to compel further responses to Set Two of his Request for Production of Documents.

            The Good Cause Requirement

            The Court finds that Plaintiff has not met his burden in showing good cause to warrant further responses to his second set of Requests for Production of Documents. The declaration of Azat in support of the RPD Motion does not mention good cause or even attempt to explain “how the discovery sought will tend in reason to prove or disprove that fact or lead to other evidence that will tend to prove or disprove the fact.” (Digital Music News LLC v. Superior Court, supra, 226 Cal.App.4th 216, 224.) Plaintiff has not met his burden in showing good cause to compel further responses. (Calcor Space Facility, Inc. v. Superior Court, supra, 53 Cal.App.4th 216, 223-24.) The declaration of Azat is essentially a recitation of meet and confer efforts between the parties and an articulation of counsel’s qualifications in support of Plaintiff’s request for monetary sanctions. (Azat Decl., ¶¶ 4-16.)

            Thus, even if the RPD Motion had been procedurally proper, the Court would have been unable to grant the RPD Motion due to Plaintiff’s failure to meet his burden in showing good cause. As such, the Court DENIES the RPD Motion.

            Monetary Sanctions

            Although not relevant due to the RPD Motion being procedurally inappropriate and Plaintiff’s failure to show good cause, the Court will briefly discuss Plaintiff’s request for monetary sanctions.

            “A request for sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought.” (Sole Energy Co. v. Hodges (2005) 128 Cal.App.4th 199, 207.)

Pursuant to the RPD Motion, Plaintiff requests monetary sanctions in the amount of $7,150. (RPD Motion, p. 9:12-14.) However, Plaintiff’s request for monetary sanctions is procedurally improper as the notice of motion does not state the amount of sanctions sought.

In sum, the Court therefore DENIES the RPD Motion in its entirety.

The Special Interrogatories Motion

            Plaintiff seeks “an order to compel further responses to [P]laintiff’s Special Interrogatories [p]ropounded to Defendant Patriot Hyundai of El Monte (Set One).” (Special Interrogatories Motion, p. 2: 4-6.) Plaintiff contends that Defendant has provided only objections to the special interrogatories at issue.

            The Meet and Confer Requirement

            “The Discovery Act requires that, prior to the initiation of a motion to compel, the moving party declare that he or she has made a serious attempt to obtain an informal resolution of each issue.” (Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1016.) “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.)

            The Court finds that the meet and confer requirement has not been met as to the Special Interrogatories Motion. In support of the Special Interrogatories Motion, Azat sets forth instances of meet and confer efforts to resolve the issues pertaining to discovery at issue in the Special Interrogatories Motion. (Azat Decl., ¶¶ 4-12; Exhibits B-D and F.)

            The Procedural Posture of the Special Interrogatories Motion

            Where responses to discovery are not verified, such responses are deemed to not be responses to the propounded discovery. (Appleton v. Superior Court, supra, 206 Cal.App.3d 632, 635.) “Unsworn responses are tantamount to no responses at all.” (Id. at p. 636.)

            Azat declares that on September 16, 2022, Plaintiff served Defendant by mail with Special Interrogatories, Set One, which contained two separate interrogatory requests. (Azat Decl., ¶ 3; Exhibit A.) Defendant’s deadline to provide responses to Plaintiff’s Request for Production was on or before October 21, 2022; however, no responses were received by Plaintiff’s counsel. (Id.) On November 4, 2022, Defendant provided responses via email, but such responses did not include any verifications for its responses. (Id., ¶ 5; Exhibit C.) The parties met and conferred over the phone because Defendant’s responses either contained assurances that the documents would be produced, but were not, or boilerplate objections. (Id., ¶ 6.) The parties then engaged in further meet and confer efforts regarding defense counsel’s representation that responsive documents would be produced as to RFP Nos. 44 and 45 and Defendant’s objections to RFP Nos. 46 and 47. (Id., ¶¶ 7-8; Exhibits D and E.) The parties further met and conferred and agreed to continue the deadline for Plaintiff to file a motion to compel further responses to January 27, 2023. (Id., ¶¶ 9-11; Exhibits F and G.) Azat declares that “[d]espite further efforts, and as of the date of [P]laintiff’s motion, Patriot Hyundai has not provided any further responses to [P]laintiff’s Special Interrogatories Nos. 1 and 2.” (Id., ¶ 12.)

            In support of the opposition to the Motions, Defendant’s counsel, Duncan J. McCreary (“McCreary”) states that on October 21, 2022, Defendant provided full and code-compliant responses to Plaintiff’s discovery requests. (McCreary Decl., ¶ 3.) McCreary states that on February 23, 2024, Defendant served Plaintiff with verified supplemental responses to Plaintiff’s discovery requests. (McCreary Decl., ¶ 7; Exhibit B.)

            The Court finds that when the Special Interrogatories Motion was filed, Defendant had not yet served verified responses to discovery. As such, Plaintiff should have filed a motion to compel initial responses to the first set of his special interrogatories as unsworn responses are tantamount to no response at all under Appleton v. Superior Court, supra, 206 Cal.App.3d 632, 636. However, Defendant has now provided what are purportedly code-compliant responses to Plaintiff’s special interrogatories. The Court will review the sufficiency of such responses below.

The Appropriateness of Compelling Further Responses to the Special Interrogatories  

            Special Interrogatory No.1 states “IDENTIFY the entity or person(s) who purchased or otherwise acquired HYUNDAI and is presently holding itself out as Cardinaleway Hyundai of El Monte.” (Separate Statement in Support of Special Interrogatories Motion, p. 3:2-4.)

            Special Interrogatory No. 2 states that “DESCRIBE IN DETAIL the factual basis regarding the sale/transfer of HYUNDAI and/or its assets to Cardinale Group of Companies, which includes its affiliates, subsidiaries, parent companies, or any other related parties.” (Id., p. 4:1-4.)  

            In its supplemental responses to Special Interrogatories Nos. 1 and 2, which were served on February 23, 2024, Defendant provides the following identical response to the special interrogatories at issue:

Responding Party objects to this request on the grounds that this Request is overbroad, unduly burdensome, harassing, and oppressive. This Request seeks documents that are irrelevant and not reasonably calculated to lead to the discovery of admissible evidence. Responding Party also objects to this Request to the extent it seeks information or communications that are subject to the attorney-client privilege and work product doctrine protecting writings containing the attorney’s impressions, conclusions, opinions or legal theories. Responding Party hereby invokes State and Federal Rights to Privacy. Responding Party hereby invokes State and Federal Rights to Privacy. Responding Party also objects to this Request on the grounds that it calls for the disclosure of confidential information, and other sensitive information, and violates the privacy rights of Responding Party and third parties. Without waiving said objections, Responding Party responses as follow: Responding Party has no information as to the identity of the purchasers of the Hyundai franchise because Hyundai corporate, manufacturer of vehicles, conducted the sale and Patriot Hyundai of El Monte, LLC had no involvement with the sale. The Hyundai manufacturer would have that information.

(McCreary Decl., ¶ 7; Exhibit B.)

               Initially, the Court notes that set one of Plaintiff’s special interrogatories have not been provided to the Court. While the Court does have the substance of the actual interrogatories as they are set forth in the separate statement, the Court lacks the ability to ascertain the meaning of the defined terms set forth in the special interrogatories. The declaration of Azat does not attach the special interrogatories in their entirety thereto.

            CCP § 2030.210(a) requires that a party to whom interrogatories have been propounded must respond in writing under oath separately to each interrogatory by any of the following: (1) an answer containing the information sought to be discovered; (2) an exercise of the party’s option to produce writings; or (3) an objection to the particular interrogatory.” (Code Civ. Proc., § 2030.210, subd. (a)(1)-(3).)

            Here, Defendant’s supplemental responses to Plaintiff’s Special Interrogatories, Set One, while containing objections indicate that, without waiving the objections, that Defendant “has no information as to the identity of the purchasers of the Hyundai Franchise because Hyundai corporate, manufacturer of vehicles, conducted the sale and Patriot Hyundai of El Monte, LLC had no involvement with the sale. The Hyundai manufacturer would have that information.”

            Thus, Defendant’s supplemental responses have indicated that they have no information as to the purchase of the Hyundai franchise. As such, Defendant has provided an answer to the interrogatories at issue. Defendant has indicated that it lacks the information to answer the interrogatories. The Court finds that Defendant’s supplemental responses are code compliant as Defendant has unequivocally stated that it has no information pertaining to subject of the interrogatories at issue.

            Monetary Sanctions

            As to monetary sanctions, Plaintiff’s request for monetary sanctions pursuant to the Special Interrogatories Motion is procedurally deficient as the notice of motion does not set forth the amount of monetary sanctions sought. (Sole Energy Co. v. Hodges, supra, 128 Cal.App.4th 199, 207.)

            Accordingly, the Court DENIES the Special Interrogatories Motion.

            The Court therefore DENIES Plaintiff’s Motion to Compel Further Responses to Plaintiff’s Special Interrogatories, Set One and Plaintiff’s Motion to Compel Further Responses to Plaintiff’s Request for Production of Documents, Set Two.

It is so ordered.

Dated: March 1, 2024

_______________________

ROLF M. TREU

Judge of the Superior Court