Judge Michael P. Linfield, Case 21STCV17933 2023-01-24 Tentative Ruling

Judge: Michael P. Linfield, Case: 21STCV17933, Date: 2023-01-24 Tentative Ruling

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Case Number: 21STCV17933 Hearing Date: January 24, 2023 Dept: 34

SUBJECT: Motion to Allow Extensive Oral Voir Dire and a Written Juror Questionnaire

Moving Party: Plaintiff Presciliano Contreras

Resp. Party: Defendants Kelly Pipe Co., LLC and James Fiorillo

SUBJECT: Motion to Compel Defendants to Provide Verifications for All of Their Written Responses and Request for Monetary Sanctions Against Defendants and Their Counsel

Moving Party: Plaintiff Presciliano Contreras

Resp. Party: Defendants Kelly Pipe Co., LLC and James Fiorillo

Plaintiff’s Motion to Allow Extensive Voir Dire Questioning and a Written Juror Questionnaire is DENIED without prejudice.

Plaintiff’s Motion to Compel Verifications is DENIED as moot. Monetary Sanctions are awarded for Plaintiff and against Defendants and their Counsel, jointly and severally, in the amount of $2,250.00.

BACKGROUND:

On May 12, 2021, Plaintiff Presciliano Contreras filed his Complaint against Defendants Kelly Pipe Co., LLC, JFE Shoji America, LLC, JFE Shoji America Holdings Inc., JFE Shoji Steel American, Inc., R. Bourgeois JFE Shoji Magnetic Lamination, Inc., Art Shelton, Steve Livingston, and James Fiorillo. The Complaint lists the following causes of action:

(1) Discrimination in violation of the Fair Employment and Housing Act (“FEHA”);

(2) Hostile work environment in violation of the FEHA;

(3) Retaliation in violation of the FEHA;

(4) Failure to prevent discrimination, harassment, or retaliation in violation of the FEHA;

(5) Breach of express oral contract not to terminate employment without good cause;

(6) Breach of implied-in-fact contract not to terminate employment without good cause;

(7) Negligent hiring, supervision, and retention;

(8) Wrongful termination of employment in violation of public policy;

(9) Whistleblower retaliation; and

(10) Intentional infliction of emotional distress.

On July 30, 2021, Defendant James Fiorillo filed his Answer.

On July 30, 2021, Defendant Kelly Pipe Co., LLC filed its Answer.

On September 22, 2021, by stipulation of the Parties, the Court dismissed without prejudice Defendants Art Shelton and Steve Livingston from the Complaint.

On January 18, 2022, by stipulation of the Parties, the Court dismissed without prejudice Defendants JFE Shoji America, LLC, JFE Shoji America Holdings Inc., JFE Shoji Steel America, Inc. (erroneously identified in the Complaint as JFE Shoji Steel American, Inc.), and R. Bourgeois JFE Shoji Magnetic Lamination, Inc.

On December 9, 2022, Plaintiff filed his Motion to Allow Extensive Oral Voir Dire and a Written Juror Questionnaire. Plaintiff concurrently filed his Proposed Order.

On December 29, 2022, Plaintiff filed his Motion to Compel Defendants to Provide Verifications for All of Their Written Responses and Request for Monetary Sanctions Against Defendants and Their Counsel (“Motion to Compel Verifications”). Plaintiff concurrently filed his Proposed Order.

On January 10, 2022, Defendants filed their Opposition to the Motion to Compel Verifications and for Sanctions. Defendants concurrently filed Declaration of Gary Scalabrini.

On January 12, 2023, the Court granted summary adjudication as to the fifth and sixth causes of action.

On January 18, Plaintiff filed his Reply to the Opposition to the Motion to Compel Verifications.

Defendants have not filed an opposition or other response regarding the Motion to Allow Extensive Oral Voir Dire and a Written Juror Questionnaire.

ANALYSIS:

I. Motion to Allow Extensive Oral Voir Dire and a Written Juror Questionnaire

A. Legal Standard

“The court may require a prospective juror to complete such additional questionnaires as may be deemed relevant and necessary for assisting in the voir dire process or to ascertain whether a fair cross section of the population is represented as required by law, if such procedures are established by local court rule.” (Code Civ. Proc., § 205, subd. (c).)

“The trial judge may direct a prospective juror to complete additional questionnaires as proposed by counsel in a particular case to assist the voir dire process.” (Code Civ. Proc., § 205, subd. (d).)

“Upon completion of the trial judge’s initial examination, counsel for each party shall have the right to examine, by oral and direct questioning, any of the prospective jurors in order to enable counsel to intelligently exercise both peremptory challenges and challenges for cause. The scope of the examination conducted by counsel shall be within reasonable limits prescribed by the trial judge in the judge’s sound discretion subject to the provisions of this chapter. During any examination conducted by counsel for the parties, the trial judge shall permit liberal and probing examination calculated to discover bias or prejudice with regard to the circumstances of the particular case before the court. The fact that a topic has been included in the trial judge’s examination shall not preclude appropriate followup questioning in the same area by counsel. The trial judge shall permit counsel to conduct voir dire examination without requiring prior submission of the questions unless a particular counsel engages in improper questioning.” (Code Civ. Proc., § 222.5, subd. (b)(1).)

“A trial judge shall not arbitrarily or unreasonably refuse to submit reasonable written questionnaires, the contents of which are determined by the court in its sound discretion, when requested by counsel. If a questionnaire is utilized, the parties shall be given reasonable time to evaluate the responses to the questionnaires before oral questioning commences.” (Code Civ. Proc., § 222.5, subd. (f).)

B. Discussion

Plaintiff moves the Court to: (1) allow Counsel to use either Plaintiff’s specially-tailored juror questionnaire or the Judicial Council juror questionnaire prior to oral voir dire; and (2) to allow extensive oral voir dire questioning. (Motion to Allow Extensive Voir Dire Questioning and a Written Juror Questionnaire, p. 7:7–10.)

The motion is unopposed.

Plaintiff’s counsel has attached a 60-question questionnaire (with many questions having numerous subparts). Plaintiff has also attached a “form” questionnaire for civil cases. The questionnaires are different in form and ask different questions. It is not clear from the motion which questionnaire is being requested. Further the motion asks the Court to approve “extensive oral Voir Dire.” (Motion, p. 2:6-7.) It is not at all clear to the Court what “extensive” Voir Dire means.

Trial is scheduled for June 12, 2023, approximately five months away. The Court finds this Motion to be both unreasonably vague and to be premature. The Court will meet with counsel at the Final Status Conference to discuss how Voir Dire will proceed.

The Motion is DENIED without prejudice.

II. Motion to Compel Verifications

A. Legal Standard

The party to whom interrogatories and requests for production are directed shall sign the response(s) under oath unless the response contains only objections. (Code Civ. Proc., §§ 2030.250, subd. (a), 2031.250, subd. (a).)

B. Discussion

Plaintiff moves the Court for an order that:

(1) Directs Defendants to produce verified written responses to the Plaintiff’s discovery requests;

(2) Provides Plaintiff an opportunity to submit an amended and/or supplemental opposition to Defendants’ Motion for Summary Judgment;

(3) Imposes evidentiary sanctions on Defendants, precluding them from introducing any evidence of, or related to, anything reflected in their discovery responses; and

(4) Directs Defendants and their Counsel to pay a monetary sanction of $4,500.00.

(Motion to Compel Verifications, p. 5:2–18.)

Among other arguments, Defendants argue that they “have provided supplemental responses to the form and special interrogatories served by Plaintiff” and provided supplemental responses with verifications. (Opposition to Motion to Compel Verifications, p. 3:17–21.) Defendants provide the Court with the Verifications and the Supplemental Responses. (Decl. Scalabrini, Exs. 1–6.)

Plaintiff acknowledges that he has received some of the Verifications from Defendants. (Reply to Motion to Compel Verifications, pp. 2:27, 3:1–5.) Plaintiff continues to argue that certain Verifications have not been provided and that Defendants should be compelled to provide them. (Id. at p. 3:6–12.)

The substantive issue at hand is now moot.

As to compelling verifications, it is undisputed that Defendants have now filed verified supplemental responses.

As to evidentiary sanctions, the Court has reviewed the written responses provided, which are essentially red-lined edits to prior written responses. As Plaintiff correctly points out, unverified discovery responses are tantamount to no response at all. (Appleton v. Super. Ct. (1988) 206 Cal.App.3d 632, 636.) Yet Defendants have provided verifications for their supplemental responses.

Finally, it is clear that at the time Plaintiff filed his Motion to Compel Verifications, Defendants had failed to serve timely, verified responses to the requests for discovery. The Court does not have evidence before it that would indicate Defendants acted with substantial justification or that there are other circumstances that would make the imposition of a sanction unjust. Thus, the Court must impose a monetary sanction on Defendants and their Counsel. (Code Civ. Proc., §§ 2030.290, subd. (c), 2031.300, subd. (c).)¿

Plaintiff requests $4,500.00 in monetary sanctions against Defendants and their Counsel. (Reply, p. 8:12–17.) Plaintiff’s Counsel declares that she bills at $450.00 per hour, that she spent six hours preparing the present motion and accompanying ex parte application, and that she anticipates spending four hours reviewing the opposition and preparing a reply brief. (Reply, Decl. Norder, ¶ 10.)

The Court finds that the hourly rate is reasonable but that the number of hours billed for this motion is excessive. The Court will award monetary sanctions for Plaintiff and against Defendants and their Counsel, jointly and severally, in the amount of $2,250.00, for five hours at $450.00 per hour.

C. Conclusion