Judge: Michael Shultz, Case: 20STCV25875, Date: 2022-08-18 Tentative Ruling
INSTRUCTIONS: If the parties wish to submit on the tentative ruling and avoid a court appearance on the matter, the moving party must:
1. Contact the opposing party and all other parties who have appeared in the action and confirm that each will submit on the tentative ruling.
2. No later than 4:00 p.m. on the court day before the hearing, call the Courtroom (310-761-4302) advising that all parties will submit on the tentative ruling and waive hearing; and
3. Serve notice of the Court's ruling on all parties entitled to receive service.
If this procedure is followed, when the case is called the Court will enter its ruling on the motion in accordance with its tentative ruling. If any party declines to submit on the tentative ruling, then no telephone call is necessary, and all parties should appear at the hearing. If there is neither a telephone call nor an appearance, then the matter may either be taken off calendar or ruled on.
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Case Number: 20STCV25875 Hearing Date: August 18, 2022 Dept: A
20STCV25875
Jose Guillermo Tapia v. BaronHR, LLC, et al
[TENTATIVE] ORDER
I. BACKGROUND
The complaint alleges that Defendants employed Plaintiff
in May 2017 to work for Plaintiff as a packer at 2839 East El Presidio Street
in Carson. On July 14, 2017, Plaintiff tripped over an unsafely parked pallet
jack at the work site. Plaintiff alleges that Defendants did not carry workers’
compensation insurance in violation of the Labor Code. Plaintiff sues
Defendants for (1) direct employer negligence, (2) negligence, and (3)
negligent hiring, training, and/or retention.
This motion was originally scheduled
to be heard on February 3, 2022 but was continued to allow the parties to
submit supplemental discovery responses and to brief the issues in the context
of motions in limine. The court continued the hearing again on May 17, 2022
based on the parties’ stipulation since the parties were “making efforts toward
settlement.” Min. Ord. 5/17/22. The court’s docket does not reflect that the
parties filed additional briefing nor has a notice of settlement been filed.
II.
MOTION FOR EVIDENTIARY AND MONETARY SANCTIONS
A.
Plaintiff’s motion
filed on January 11, 2022
Plaintiff requests imposition of
issue and monetary sanctions against Defendants, Titan Personnel (“Titan”),
BaronHR Group, LLC, and BaronHR, LLC (collectively “Baron Defendants”) for
their failure to comply with the court’s order of November 19, 2021, compelling
Defendants to serve further verified responses to Plaintiff’s Form
Interrogatories, Set One to which Defendants provided only objections. While
Defendants served further responses after the court’s order, Defendants did not
provide substantive responses to some of the Interrogatories. Defendants merely
stated that “discovery was ongoing.”
Plaintiff attempted to meet and
confer in good faith. Defendants did not provide further responses.
B.
Defendants’
Opposition filed January 21, 2022
Defendants contend they complied
with the court’s order to provide substantive responses without objection.
Defendants’ responses that “discovery was continuing” were appropriate since
much of the information is within the possession of third parties and outside
of responding party’s control. Defendants have otherwise cured the “most
significant issues.”
Defendants contend that Plaintiff
did not make reasonable efforts to meet and confer prior to filing the motion.
Plaintiff only demanded further responses. Any issues that remain will have
been cured by the time the motion is heard. Sanctions are not warranted since
Defendants’ responses are meritorious.
C.
Reply filed
January 27, 2022
Responding that “discovery is ongoing” is not a substantive response.
Defendants
have not shown substantial justification for their failure to comply.
Defendants have repeatedly failed to comply with their discovery obligations.
The parties met and conferred on January 18, 2022, which was fruitless.
III. DISCUSSION
Disobeying
a court order to provide discovery constitutes a misuse of the discovery
process. Code Civ. Proc., § 2023.010 (g).
The court may impose evidentiary, issue, monetary and/or contempt
sanctions against the party disobeying a court order for abuse of discovery
process. Code Civ. Proc., § 2023.030.
On November 19, 2021, the court
heard and granted Plaintiff’s motion to compel Defendant to provide verified
responses without objection to written discovery within 20 days. Declaration of
Angela Leong, ¶ 11. Plaintiff permitted a 10-day extension through December 9,
2021, for Defendants to comply. Id. ¶ 12. Defendants served
non-substantive responses to some Interrogatories that claimed discovery was
ongoing. Id., ¶ 13, Ex. C. At issue in this motion are Form
Interrogatories 12.1 – 12.4, 12.6 - 12.7, 13.1 - 13.2, 15.1, 16.1-16.9, and
17.1. See Plaintiff’s Separate Statement, 2:3-4.
The Bahron defendants filed their
answer on September 4, 2020. Defendant Titan filed its answer on September 18,
2020. Plaintiff served written discovery in March of 2021, and Defendants
served objections only on April 1, 2021. Sixteen months later, there is no
indication that Defendants have provided basic, substantive responses to Form
Interrogatories described above, including information to support any of its
affirmative defenses as ordered by the court.
Based on Defendants’ non-responses,
Defendants have not disclosed
information of the identity of witness; the existence of photographs,
films, videotapes, and incident reports; information of Defendants’ scene
inspection; surveillance information and reports; evidence in support of
affirmative defenses, information on any third-party liability; evidence in
support of the lack of liability or causation, or whether medical treatments or
lost income were unrelated to the incident; prior or subsequent injuries; or
evidence in support of Defendants’ denials to Plaintiff’s requests for
admissions. Plaintiff’s Motion, 11:7 – 17:18.
Defendants have not shown any
justification for failing to respond in substance given the length of time
since Defendants first appeared in this case or since Plaintiff first served
the discovery on Defendants. “Discovery is continuing” is not a code-compliant
response. Defendants’ obligation is to answer completely or to the extent
possible. Code Civ. Proc., §2030.220(b).
If Defendants do not have personal knowledge sufficient to respond
fully, “that party shall so state, but shall make a reasonable and good faith
effort to obtain the information by inquiry to other natural persons or
organizations, except where the information is equally available to the
propounding party.” Code Civ. Proc., § 2030.220(c).
Defendants argue they did not
provide information because “much of the information” is within the possession
of third parties outside of Defendants’ control. Opp. 6: 2-4. Defendants have
had nearly 16 months to make a good faith effort to obtain the information, and
Defendants have not established that they have reasonably complied with that
obligation.
Many of the General Form
Interrogatories are “yes” or “no” questions. See for example Form
Interrogatories 12.1-12.7, 13.1-13.2, 16.1-16.9 and 17.1. Defendants avoid the
questions entirely by stating that discovery is continuing. Plaintiff cannot
ascertain whether such information exists or what defenses will be raised at
trial. Where the question is specific and explicit, “an answer which supplies
only a portion of the information sought is wholly insufficient. Likewise, a
party may not provide deftly worded conclusionary answers designed to evade a
series of explicit questions.” Deyo v. Kilbourne (1978) 84 Cal. App. 3d 771, 783. Making an evasive response to
discovery is a misuse of the discovery process. Code Civ. Proc., §2023.010(f).
Discovery sanctions are not to be
imposed for punishment, but instead are used to encourage fair disclosure of
discovery to prevent unfairness resulting from the lack of information.
Sanctions are inappropriate to impose punishment.” Midwife v. Bernal (1988)
203 Cal. App. 3d 57, 64. However, Plaintiff has made every effort to obtain the
information to prepare for trial, and the court has granted Defendants the
opportunity to reasonably comply with their discovery obligations in the
interest of encouraging fair disclosure. Terminating sanctions are appropriate
where there is an outright refusal to comply with discovery obligations; “there
is no question that a court is empowered to apply the ultimate sanction against
a litigant who persists in the outright refusal to comply with his discovery
obligations [citations omitted]. The refusal to reveal material evidence is
deemed to be an admission that the claim or defense is without merit.” Deyo v. Kilbourne, (1978) 84 Cal. App. 3d 771, 793.
Defendants’ unwillingness to provide
the most basic information is also demonstrated in the Defendants’ responses to
other written discovery at issue which reveals the following instances where
Defendants responded with “discovery is continuing”:
Form Interrogatories – Employment:
201.5, 201.6, 204.3, 204.4, 204.5, 204.6, 204.7, 207.2, 208.1, 208.2, 209.2,
211.1, 211.2, 211.3, 216.1, and 217.1. With respect to Employment Form
Interrogatories 214.1 and 214.2, Defendants contended that they provided
information in response to General Form Interrogatories 4.1. However,
Defendants responded with “discovery is continuing” in response to General Form
Interrogatory 4.1. Ex. B, pdf page 152:15-18.
See also, Form
Interrogatories – General: 4.1, 12.1-12.7, 13.1 – 13.2, 14.2, 15.1, 16.1-16.10,
17.1; Special Interrogatories, Set One: 1 – 3. As to Request for Production of
Documents, Set One, Defendants responded with “discovery is continuing” as to
requests: 7 – 18, 21, 22, 27, 29, 30, 31, 32, 33, 34, 35. Defendants agreed to
produce non-privileged documents in response to the following requests: 1-6,
19, 20, 23, 24, 25, 26.
All responses at issue and
identified above are not code compliant, nor do they comply with the court’s
order. A response that “discovery is continuing” is evasive and not responsive
to the requests. The agreements to produce “non-privileged documents” are
contrary to the court’s order and are similarly evasive. First, there is no
evidence that Defendants produced any documents. Secondly, the court’s order of
November 19, 2021, required responses without objection. Defendants’ only
objection to providing responses was based on a belief that doing so would
result in a waiver of the right to arbitrate, which the court found to be
without merit. Defendants did not object based on grounds of any privilege.
In addition, Defendants’ continued
avoidance of its discovery obligations has resulted in substantial prejudice to
the Plaintiff given that trial is set for February 17, 2022. The
above-described defective responses demonstrate Defendants’ outright refusal to
comply with the court’s discovery order for which evidentiary and monetary
sanctions are warranted.
IV. CONCLUSION
Therefore, Plaintiff’s Motion is
GRANTED. Defendants are precluded from introducing evidence relating to
Defendants’ witnesses to the subject incident; Defendants’ witness statements
relating to the subject incident; introducing photographs, films, and/or
videotapes relating to the subject incident; introducing Defendants’ incident
reports, Defendants’ scene inspection, and/or surveillance information and
reports relating to the subject incident; evidence in support of Defendants’
affirmative defenses; evidence supporting third-party liability for Plaintiff’s
injury; evidence in support of no liability for Plaintiff’s injury; evidence in
support of no causation; evidence in support of the contention that Plaintiff’s
medical treatments were not related to injuries sustained in the subject
incident or that Plaintiff’s medical expenses were unreasonable or unnecessary;
evidence supporting the contention that Plaintiff’s loss of income claim is
unreasonable; evidence in support of prior and/or subsequent injuries of the
Plaintiff; and evidence in support of Defendants’ denials to Plaintiff’s
requests for admission.
The court also imposes monetary
sanctions of $2,460.00 ($400/hour x 6 hours plus filing fee of $60) against
Defendants, Titan Personnel, Inc.; BaronHR Group, LLC; and BaronHR, LLC,
jointly and severally, for fees and costs incurred by Plaintiff in making this
motion. Sanctions are payable to the Plaintiff within 10 days.