Judge Michelle C. Kim, Case Number: 22STCV31358, Date: 2024-04-03 Tentative Ruling

On September 26, 2022, Plaintiff, Fermin Garcia, filed this action against Defendants, Quik Tow LLC (“Quik Tow”) and Ignacio Gonzalez, for wage and hour violations.

On March 5, 2024, Plaintiff timely filed these motions to compel further responses to Form Interrogatories (General), Set One, Nos. 12.1, 15.1, and 17.1; Special Interrogatories, Set One, No. 6; and Request for Production of Documents, Set One, Nos. 1, 2, 4-8, 19, 20, 25, 28, 31, 35, and 39. Plaintiff requests sanctions against Quik Tow and its counsel.

Under Code of Civil Procedure sections 2030.300 and 2031.310, parties may move for a further response to interrogatories and requests for production of documents where an answer to the requests are evasive or incomplete or where an objection is without merit or too general.¿ A motion to compel further response to requests for production “shall set forth specific facts showing good cause justifying the discovery sought by the inspection demand.”¿ (Code Civ. Proc., § 2031.310, subd. (b)(1).)¿¿¿¿

Notice of the motions must be given within 45 days of service of the verified response, otherwise, the propounding party waives any right to compel a further response. (Code Civ. Proc., §§ 2030.300, subd. (c); 2031.310, subd. (c).)¿ The motions must also be accompanied by a meet and confer declaration. (Code Civ. Proc., §§ 2030.300, subd. (b)(1); 2031.310, subd. (b)(2).)

Finally, California Rules of Court, Rule 3.1345 requires that all motions or responses involving further discovery contain a separate statement with the text of each request, the response, and a statement of factual and legal reasons for compelling further responses.¿ (Cal. Rules of Court, rule 3.1345(a)(3).)¿¿¿

Code of Civil Procedure section 2023.030 is a general statute authorizing the Court to impose discovery sanctions for “misuse of the discovery process,” which includes (without limitation) a variety of conduct such as: making, without substantial justification, an unmeritorious objection to discovery; making an evasive response to discovery; and unsuccessfully and without substantial justification making or opposing a motion to compel or limit discovery.¿ (Code Civ. Proc., § 2023.010.)¿¿¿

If sanctions are sought, Code of Civil Procedure section 2023.040 requires that the notice specify the identity of the person against whom sanctions are sought and the type of sanction requested, that the motion be supported in the points and authorities, and the facts be set forth in a declaration supporting the amount of any monetary sanction.¿¿

If the court finds that a party has unsuccessfully made or opposed a motion to compel responses to interrogatories or inspection demands, the court “shall impose a monetary sanction . . . unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”¿ (Code Civ. Proc., §§ 2030.290, subd. (c); 2031.310, subd. (h).)¿¿¿

Sanctions against counsel:¿ The court in Kwan Software Engineering, Inc. v. Hennings (2020) 58 Cal.App.5th 57, 81 (Hennings) noted that discovery sanctions against an attorney are governed by a different standard than sanctions against a party:¿¿¿¿

By the terms of the statute, a trial court under section 2023.030(a) may not impose monetary sanctions against a party’s attorney unless the court finds that the attorney “advised” the party to engage in the conduct resulting in sanctions. (§ 2023.030(a); Ghanooni v. Super Shuttle (1993) 20 Cal.App.4th 256, 261, 24 Cal.Rptr.2d 501.)¿ “Unlike monetary sanctions against a party, which are based on the party's misuse of the discovery process, monetary sanctions against the party's attorney require a finding the ‘attorney advis[ed] that conduct.’ ” (Ibid.) “It is not enough that the attorney's actions were in some way improper.” (Corns v. Miller (1986) 181 Cal.App.3d 195, 200, 226 Cal.Rptr. 247 (Corns).) Because an attorney's advice to a client is “peculiarly within [his or her] knowledge,” the attorney has the burden of showing that he or she did not counsel discovery abuse. (Ibid.) Accordingly, when a party seeking sanctions against an attorney offers sufficient evidence of a misuse of the discovery process, the burden shifts to the attorney to demonstrate that he or she did not recommend that conduct. (Id. at pp. 200–201, 226 Cal.Rptr. 247; Ghanooni, at p. 262, 24 Cal.Rptr.2d 501.)¿

Plaintiff seeks a further response to Form Interrogatories (General), Set One, Nos. 12.1, 15.1, and 17.1; Special Interrogatories, Set One, No. 6; and Request for Production of Documents, Set One, Nos. 1, 2, 4-8, 19, 20, 25, 28, 31, 35, and 39.

Form Interrogatory No. 12.1: State the name, ADDRESS, and telephone number of each individual; (a) who witnessed the INCIDENT or the events occurring immediately before or after the INCIDENT; (b) who made any statement at the scene of the INCIDENT; (c) who heard any statements made about the INCIDENT by any individual at the scene; and (d) who YOU OR ANYONE ACTON ON YOUR BEHALF claim has knowledge of the INCIDENT (except for expert witnesses covered by Code of Civil Procedure section 2034).

The court finds Quik Tow’s response to Form Interrogatory No. 12.1 is incomplete and evasive. A further response is warranted.

Form Interrogatory No. 15.1: Identify each denial of a material allegation and each special or affirmative defense in your pleadings and for each: (a) state all facts upon which you base your denial or special or affirmative defense; (b) state the name, ADDRESSES, and telephone numbers of all PERSONS who have knowledge of those facts and; (c) identify all DOCUMENTS and other tangible things that support your denial or special or affirmative defense, and state the name of the PERSON who has each DOCUMENT.

Quik Tow responded: “(a) General denial of unverified facts. All defenses based in part or in full upon lack of employee/employer relationship or other exemption from DIR provisions asserted or relief requested by Plaintiff. Defendant was an independent contractor. (b) Rocio Rivera – 562-321-3723. (c) 1099.”

The court finds Quik Tow’s response to Form Interrogatory No. 15.1 is incomplete and evasive. A further response is warranted.

Form Interrogatory No. 17.1: Is your response to each request for admission served with these interrogatories as an unqualified admission? If not, for each response that is not a qualified admission: (a) state the number of the request; (b) state all facts upon which you base your response; (c) state the name, ADDRESSES, and telephone numbers of all PERSONS who have knowledge of those facts; and (d) identify all DOCUMENTS and other tangible things that support your response and state the name, ADDRESS, and telephone number of the PERSON who has each DOCUMENT or thing.

Quik Tow responded: “#29 RFA Set 2 Plaintiff was an independent contractor, providing a specialized service for the business that was beyond the normal scope and equipment capability of the company. He provided long-hail towing which we did not prior to his approaching the company with this new business opportunity. 1099 Rocio Rivera 562-321-3732.”

The court finds Quik Tow’s response to Form Interrogatory No. 17.1 is incomplete and evasive. A further response is warranted.

Special Interrogatory No. 6: Please IDENTIFY each and every one of YOUR employees who worked with PLAINTIFF during PLAINTIFF’s employment with you.” The Definitions and Explanations section of the discovery requests states the “term “IDENTIFY,” when used in relation to an individual, shall be interpreted as requesting the name, current address, last known address if no current address is known, phone number, job title or position held with Defendant or its company, whether the person is presently employed by respondent, and if not, whether Defendant or any of its employees or agents knows of the person's whereabouts.”

Quik Tow responded: “Carlos Delgado: 840-213-5012. Rocio Rivera: 562-321-3723. Julio Martinez: 562-391-8743. Francisco Torres: 909-218-0191.”

The court finds Quik Tow’s response to Special Interrogatory No. 6 is incomplete and evasive. A further response is warranted.

Quik Tow responded as follows to Nos. 1, 2, 4-8, 19, 20, 31, 35, and 39: “Responding party will comply with the particular demand. The item(s) will be allowed in whole and all documents or things in the demanded category that are in the possession, custody, or control will be included in the production.”

Plaintiff argues a further response is warranted because it does not comply with Code of Civil Procedure section 2031.220.[2] Section 2031.220 provides, “A statement that the party to whom a demand for inspection, copying, testing, or sampling has been directed will comply with the particular demand shall state that the production, inspection, copying, testing, or sampling, and related activity demanded, will be allowed either in whole or in part, and that all documents or things in the demanded category that are in the possession, custody, or control of that party and to which no objection is being made will be included in the production.” The court agrees. A further response to Nos. 1, 2, 4-8, 19, 20, 31, and 35 is warranted.

Quik Tow responded to Nos. 25 and 28 as follows: “Responding party lacks the ability to comply with the demand. Responding party affirms that a diligent search and a reasonable inquiry has been made in an effort to comply with the demand in full, but the particular one or more items have been lost. Responding party does not know of any natural person or organization to have possession, custody, or control of that item or category of item.”

Plaintiff seeks a further response to Nos. 25 and 28 because Quick Tow “does not state that it is not in possession of any responsive documents, or that all responsive documents have been lost.” In other words, Plaintiff argues Quik Tow’s response is to Nos. 25 and 28 are not Code-compliant. The court agrees.

A representation of inability to comply under section 2031.230 has three parts:¿ the statement must¿(1) affirm that a diligent search and reasonable inquiry has been made in an effort to comply, and¿ (2) the statement shall specify whether the inability to comply is because “the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party.”¿¿And, (3) The third part comes into play if the responding party knows or believes someone else has possession of the documents:¿ if so, “[t]he statement shall set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item.”¿

Here, Quik Tow’s response to Nos. 25 and 28 is evasive and incomplete as it is unclear if Quik Tow possesses some documents that are responsive to Nos. 25 and 28. A further response to Requests for Production, Nos. 25 and 28 is warranted.

Plaintiff requests sanctions against Quik Tow and its counsel. Given the Court has granted the motions, sanctions are warranted. Pursuant to Hennings, supra, imposition of monetary sanctions against counsel is also proper unless counsel shows that he or she did not counsel the discovery abuse.¿ (Hennings, 58 Cal.App.5th at p. 81.)¿ Defense counsel does not meet their burden. Accordingly, sanctions are imposed against Quik Tow and its attorney of record in the amount of $1,860, consisting of three hours at plaintiff’s counsel hourly rate and $210 in filing fees.

The motions to compel further responses to Form Interrogatories (General), Set One, Nos. 12.1, 15.1, and 17.1, Special Interrogatories, Set One, No. 6, and Request for Production of Documents, Set One, Nos. 1, 2, 4-8, 19, 20, 25, 28, 31, 35, and 39 are GRANTED. Defendant Quik Tow LLC is ordered to provide further responses within 15 days of this order.

The requests for sanctions are granted. Defendant Quik Tow LLC and its counsel are ordered to pay, jointly and severally, sanctions in the sum of $1,860, to be paid to Plaintiff, by and through his counsel within 30 days of this order.

Kerry Bensinger

Judge of the Superior Court

[1] A failure to oppose a motion may be deemed a consent to the granting of the motion. (Cal. Rules of Court, rule 8.54(c).)

[2] The court notes that Plaintiff also argues that the responses to Nos. 1, 2, 4-8, 19, 20, 31, 35, and 39 do not comply with Section 2031.280 because Quik Tow did not label any of the documents produced to correspond with the demand. This argument lacks marit. Plaintiff relies on an outdated version of Section 2031.280. The current version of Section 2031.280 does not set forth any such “labeling” requirement.