Judge Michelle Williams Court, Case 21STCV10177 2022-08-24 Tentative Ruling

Judge: Michelle Williams Court, Case: 21STCV10177, Date: 2022-08-24 Tentative Ruling

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Case Number: 21STCV10177 Hearing Date: August 24, 2022 Dept: 74

21STCV10177 LAFOLLETTE MARQUIS HENDERSON, IV vs PRIME COMMS. RETAIL, LLC

Plaintiff’s Motion to Compel Further Responses to Plaintiff’s Requests for Production of Documents, Set One; Form Interrogatories – Employment and Form Interrogatories - General and Request for Sanctions

TENTATIVE RULING: Plaintiff filed three separate motions in one and filed the motion under a single reservation number. In the future, the court will not rule on improperly combined motions and will take them off calendar.

The motion is MOOT as to Requests for Production Nos. 2, 5, and 7-15, Form Interrogatories – Employment Nos. 200.1, 200.3, 200.4 – 200.6, 201.1, 201.6, 207.1, and 207.2, and Form Interrogatories – General No. 3.3.

The motion is DENIED as to Requests for Production Nos. 18, 22-28, 39, and 41-43,

The motion is GRANTED as to Requests for Production Nos. 16, 17, 30, 31, 37, 38, and 50-55, Form Interrogatories – Employment Nos. 211.1, 215.1, 215.2, and 216.1, and Form Interrogatories – General Nos. 12.1-12.3 and 15.1. Defendant must provide further verified, code-compliant responses to this discovery. To the extent Defendant claims the attorney-client or work product privileges apply over any of the responsive documents or information, it shall simultaneously serve a privilege log with the document production that, at a minimum, identifies each document for which a privilege is claimed, its author, recipients, the date of preparation, the privilege claimed, and any other information necessary to evaluate the privilege.

The Court declines to impose sanctions.

Background

On March 16, 2021, Plaintiff Lafollette Marquis Henderson, IV filed this action against Defendant Prime Comms. Retail, LLC. The complaint alleges seven causes of action: (1) Retaliation in Violation of Cal. Lab. Code § 1102.5, (2) Discrimination Based on Race in Violation of Cal. Gov’t Code § 12940(a), (3) Discrimination Based on Sexual Orientation in Violation of Cal. Gov’t Code § 12940(a), (4) FEHA Retaliation in Violation of Cal. Gov’t Code § 12940(h), (5) Failure to Prevent Discrimination and Retaliation in Violation of Cal. Gov’t Code § 12940(k), (6) Wrongful Constructive Discharge in Violation of Public Policy, and (7) Declaratory and Injunctive Relief.

On January 31, 2022, the Court issued an order denying Defendant’s motion to compel arbitration.

Motion

Plaintiff Lafollette Marquis Henderson IV moves the Court for an order compelling further responses to Requests for Production, Set One, Nos. 2-5, 7-47, 50-55, and 57, Form Interrogatories – Employment Law Nos. 200.1, 200.3 – 200.6, 201.1, 201.6, 207.1, 207.2, 211.1, 215.1-215.2, 216.1, and Form Interrogatories – General Nos. 3.3, 12.1-12.3, and 15.1.

Opposition

In opposition, Defendant contends the Court should delay ruling on the motion and it adequately supplemented its responses.

Reply

In reply, Plaintiff argues there is no basis to delay ruling on the motion and Defendant’s supplemental responses are insufficient.

Motion to Compel Further Responses to Interrogatories and Production Requests

Standard

The propounding party may bring a motion to compel further responses to interrogatories and requests for production if it believes the responses received are evasive or incomplete, the attempt to produce writings pursuant to Code of Civil Procedure section 2030.230 is unwarranted or inadequate, the statement of compliance is incomplete, or if the objections raised are meritless or too general. (Code Civ. Proc. §§ 2030.300(a); 2031.310(a).) The motion must be accompanied by a good-faith meet and confer declaration, (Code Civ. Proc. § 2016.040), and be accompanied by a separate statement. (Cal. R. Ct., rule 3.1345.)

As an additional requirement only as to requests for production, the motion must set forth specific facts showing good cause justifying the discovery sought. (Code Civ. Proc. § 2031.310(b)(1).) “[T]hat burden is met simply by a fact-specific showing of relevance.” (TBG Ins. Services Corp. v. Superior Court, 96 Cal. App. 4th 443, 447 (2002).) The opposing party bears the burden of justifying any objections. (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255; Kirkland v. Superior Court (2002) 95 Cal.App.4th 92, 97-98.)

Unless extended, the motion must be filed within 45 days of service of the responses. (Code Civ. Proc. §§ 2016.050; 2030.300(c) 2031.310(c); Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410 (“the time within which to make a motion to compel . . . is mandatory and jurisdictional.”).)

Background of Discovery and Meet and Confer

On February 14, 2022, Plaintiff served Requests for Production of Documents, Set One, Form Interrogatories – Employment, and Form Interrogatories - General on Defendant. (Gil Decl. ¶ 2.) After a series of extensions, Defendant provided verified responses on April 8, 2022. (Id. ¶¶ 3-6, Ex. 2.) Plaintiff sent a meet and confer letter on April 22, 2022 regarding Defendant’s objections. (Id. ¶ 7, Ex. 3.) Defendant granted Plaintiff an extension on the deadline to file the motion, but did not substantively respond to the meet and confer request. (Id. ¶ 8, Ex. 4.)

The Court Shall Not Defer Ruling on the Motion

In opposition, Defendant contends the Court should defer ruling on this discovery motion until the Court hears Defendant’s second motion to compel arbitration. (Opp. at 3:19-5:12.) The Court denied Defendant’s ex parte application seeking a stay on August 3, 2022. Defendant provides no basis for the Court to grant such relief in connection with its opposition to a discovery motion.

Form Interrogatories – Employment

In reply, Plaintiff acknowledges Defendant served supplemental responses resolving the motion as to Form Interrogatories – Employment Nos. 200.1, 200.3, 200.4-200.6, 201.1, 201.6, 207.1, and 207.2. Accordingly, the only remaining Form Interrogatories – Employment at issue are Nos. 211.1, 215.1 – 215.2, and 216.1. (Reply at 4:19-5:25.) The motion is therefore MOOT as to Form Interrogatories – Employment Nos. 200.1, 200.3, 200.4-200.6, 201.1, 201.6, 207.1, and 207.2.

Defendant’s supplemental responses are contained in its responsive separate statement and therefore the Court can resolve the parties’ disputes in connection with this motion. (See e.g. Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 405.)

Form Interrogatory No. 211.1

Form Interrogatory No. 211.1 requested that Defendant “Identify each type of BENEFIT to which the EMPLOYEE would have been entitled, from the date of the ADVERSE EMPLOYMENT ACTION to the present, if the ADVERSE EMPLOYMENT ACTION had not happened and the EMPLOYEE had remained in the same job position. For each type of benefit, state the amount the EMPLOYER would have paid to provide the benefit for the EMPLOYEE during this time period and the value of the BENEFIT to the EMPLOYEE.”

Defendant’s supplemental response provides “Defendant objects to Plaintiff’s provided definition of the term ‘Benefit’ on the basis that it is vague and circular and fails to identify the information it seeks with any reasonable certainty such that Defendant can be expected to respond. Subject to and without waiving the foregoing objections, Defendant responds as follows: It is Defendant’s belief and contention that Plaintiff was not subject to an adverse action as defined in the definition section of these requests. As such, this request is not applicable.”

Defendant’s objections lack merit and its response is evasive. The term “BENEFIT” is clearly defined in the Judicial Council’s Form Interrogatories – Employment and is therefore not fatally vague. (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 783 (“A party may not deliberately misconstrue a question for the purpose of supplying an evasive answer. [Citation]. Indeed, where the question is somewhat ambiguous, but the nature of the information sought is apparent, the proper solution is to provide an appropriate response.”).) Similarly, Defendant cannot respond that the request is not applicable. (Id. at 783 (“A party cannot state, ‘not applicable’ where the interrogatory is clearly applicable to him.”).) The Form Interrogatories – Employment define an ADVERSE EMPLOYMENT ACTION to include a TERMINATION, which in turn is defined as any termination of employment, including resignation. Plaintiff alleges he resigned on November 13, 2019. (Compl. ¶ 10.) Additionally, the complaint identifies the adverse employment actions at issue in this case. (Compl. ¶¶ 1, 16, 17, 18, 20, 27, 39, 50, 60, 79.) Defendant must provide a verified, supplemental response, without objection and the motion is GRANTED as to Form Interrogatories – Employment No. 211.1.

Form Interrogatory Nos. 215.1 – 215.2

These interrogatories ask whether Defendant, or anyone acting on behalf of Defendant, interviewed any individual, or obtained a written or recorded statement from any individual, concerning the adverse employment actions and seeks related information.

Defendant’s supplemental response to Form Interrogatory No. 215.1 provides “Defendant objects to this Interrogatory because the terms ‘interviewed’ and ‘interview’ are vague and undefined. Defendant further objects to this Interrogatory because and to the extent that it calls for information that is subject to the attorney-client privilege and work product doctrine. Subject to and without waiving the foregoing objections, Defendant responds as follows: It is Defendant’s belief and contention that Plaintiff was not subject to an adverse action as defined in the definition section of these requests. As such, this request is not applicable.”

Defendant’s supplemental response to Form Interrogatory No. 215.2 provides “Defendant objects to this Interrogatory because the term “statement” is vague and undefined. Defendant further objects to this Interrogatory because and to the extent that it calls for information that is subject to the attorney-client privilege and work product doctrine. Defendant objects to this Interrogatory because the terms ‘interviewed’ and ‘interview’ are vague and undefined. Defendant further objects to this Interrogatory because and to the extent that it calls for information that is subject to the attorney-client privilege and work product doctrine.”

Defendant’s vagueness objections lack merit and its response is evasive. (Deyo, supra, 84 Cal.App.3d at 783 (“A party may not deliberately misconstrue a question for the purpose of supplying an evasive answer. [Citation]. Indeed, where the question is somewhat ambiguous, but the nature of the information sought is apparent, the proper solution is to provide an appropriate response.”).) Additionally, Defendant did not object to Form Interrogatory No. 215.2 as vague based upon the terms ‘interviewed’ and ‘interview’ in its initial response, and that objection is waived. (Id. at 785 (“Objections must be interposed in a timely fashion, and, absent good cause for relief from default, a court will not consider belated objections or additional objections.”).) Defendant’s “not applicable” response is evasive for the reasons discussed above. (Id. at 783 (“A party cannot state, ‘not applicable’ where the interrogatory is clearly applicable to him.”).)

To the extent Defendant claims information is privileged, it must provide a privilege log. The motion is GRANTED as to Form Interrogatories – Employment Nos. 215.1 and 215.2.

Form Interrogatory No. 216.1

Form Interrogatory No. 216.1 requests that Defendant identify all facts, witnesses, and documents supporting its denials and affirmative defenses. Defendant’s supplemental response provides:

Defendant objects to this Interrogatory on the basis that it is premature and in that it seeks to assess the basis for each and every denial and special or affirmative defenses asserted on behalf of Defendant. Discovery is ongoing and as such, Defendant is not in possession of adequate information by which to provide a full and complete response. Furthermore, this Interrogatory seeks information which is protected by the attorney-client privilege and/or the attorney work product doctrine. All denials and affirmative defenses were pleaded prospectively to protect Defendant’s rights pending discovery. Additionally, this Interrogatory seeks legal conclusion and premature expert opinion in violation of the Code of Civil Procedure. Moreover, this Interrogatory is oppressive because Plaintiff, the propounding party, has created an unreasonable burden for Defendant, the responding party. West Pico Furniture Co. v. Super Ct. (1961) 56 Cal.2d 407, 417. Defendant retains the right to amend its response based on subsequently discovered evidence.

Subject to and without waiving any of the foregoing general and specific objections, Defendant responds as follows: Pursuant to the Code of Civil Procedure, Defendant generally denied to allegations of the Complaint, and asserted all appropriate legal defenses; each denial of a material allegation and each special and affirmative defense were pleaded according to the Code. Defendant has reason to believe that Plaintiff’s claims are unsubstantiated and otherwise meritless, and moreover must be resolved via binding arbitration. Plaintiff’s self-serving assessment and allegations are not based on corroborating facts and logical conclusions. Discovery and investigation are ongoing and continuing. Defendant will further supplement its responses to this interrogatory by August 19, 2022.

(Opp. Sep. Stmt. at 59-60.)

Defendant did not justify its burden objection and must specifically respond to each subsection of the form interrogatory with all information currently known to Defendant. (West Pico, supra, 56 Cal.2d at 417 (“The objection based upon burden must be sustained by evidence showing the quantum of work required, while to support an objection of oppression there must be some showing either of an intent to create an unreasonable burden or that the ultimate effect of the burden is incommensurate with the result sought.”).) Defendant’s response is evasive and incomplete. “[I]nterrogatories are designed to permit discovery of all facts ‘presently known to a defendant upon which it predicates its defenses.” (Burke v. Superior Court of Sacramento County (1969) 71 Cal.2d 276, 285. See also Singer v. Superior Court of Contra Costa County (1960) 54 Cal.2d 318, 326 (“The three questioned interrogatories merely call for the facts this defendant now knows that support its pleaded defenses.”).)

To the extent Defendant claims information is privileged, it must provide a privilege log. The motion is GRANTED as to Form Interrogatory No. 216.1.

Form Interrogatories – General

In reply, Plaintiff acknowledges Defendant provided supplemental responses resolving the motion as to Form Interrogatory – General No 3.3. (Reply at 4:19-24.) Accordingly, the only remaining Form Interrogatories – General at issue are 12.1-12.3 and 15.1. The motion is therefore MOOT as to Form Interrogatory – General No 3.3

Form Interrogatories Nos. 12.1-12.3 seek information regarding witnesses, interviews, and written statements concerning “the INCIDENT.” The term “INCIDENT” is defined by Plaintiff in the interrogatories as “retaliation, harassment, disparate treatment, and constructive discharge.”

Defendant’s original response to each of these form interrogatories was “Defendant objects to Plaintiff’s provided definition of the term “Incident” on the basis that it is vague and purportedly refers to multiple events that occurred on different dates and involved different individuals but does not identify such events, dates, or individuals with any reasonable certainty such that Defendant can be expected to respond. Defendant further objects to this Interrogatory because and to the extent that it calls for information that is subject to the attorney-client privilege and work product doctrine.” Defendant stands on these objections in its opposition. (Opp. at 7:13-28.) Defendant additionally identified Plaintiff and otherwise responded “unknown at present” in response to Form Interrogatory No. 12.1.

Defendant’s responses are evasive and Defendant must provide a further response. While Plaintiff’s definition of “incident” is a list of legal claims, the information sought and the underlying conduct in question is clear from Plaintiff’s complaint. (See e.g. Compl. ¶¶ 1, 16, 17, 18, 20, 27, 39, 50, 60, 79; (Deyo, supra, 84 Cal.App.3d at 783 where the question is somewhat ambiguous, but the nature of the information sought is apparent, the proper solution is to provide an appropriate response.”).) The motion is GRANTED as to Form Interrogatories – General Nos. 12.1-12.3.

Form Interrogatories – General No. 15.1 is identical to Form Interrogatories – Employment No. 216.1. Both seek the identity of all facts, witnesses, and documents supporting each denial and affirmative defense and Defendant provided the same response. Accordingly, the motion is GRANTED as to Form Interrogatories – General 15.1 for the same reasons outlined above.

Requests for Production

Plaintiff’s motion sought to address Requests for Production, Set One, Nos. 2-5, 7-47, 50-55, and 57. In reply, Plaintiff acknowledges Defendant cured the claimed defects in its responses to Requests Nos. 2, 5, and 7-15. (Reply at 3:9-10.) The motion is therefore MOOT as to Requests Nos. 2, 5, and 7-15.

Failure to Produce Documents

As to Requests Nos. 18-40, 44-47, 50-53, and 57, the motion and separate statement solely address Defendant’s failure to produce responsive documents and the assertion of privilege. (Mot. at 5:23-7:10; Sep. Stmt. at 13-21.) Accordingly, Plaintiff’s motion as to these requests is largely pursuant to Code of Civil Procedure section 2031.320(a), a statute not cited by Plaintiff: “[i]f a party filing a response to a demand for inspection, copying, testing, or sampling under Sections 2031.210, 2031.220, 2031.230, 2031.240, and 2031.280 thereafter fails to permit the inspection, copying, testing, or sampling in accordance with that party's statement of compliance, the demanding party may move for an order compelling compliance.” As noted by Defendant in opposition, Plaintiff did not provide any evidence supporting the claim that Defendant failed to produce responsive documents. (Opp. at 6:3-5, 6:25-27 (“Plaintiff seems to doubt that all responsive documents have, in fact, been produced, but offers no evidence that additional documents exist which are responsive to one of these requests, and are in Defendant’s possession, custody or control.”).)

Requests Nos. 16, 17, 30, 31, 37, 38, and 50-55

In reply, Plaintiff contends “Defendant initially agreed to produce all responsive documents. Now Defendant’s amended responses to indicate that Defendant needs until August 19, 2022 to produce responsive documents” as to these requests. (Reply at 3:16-19.) This is not a basis to compel a further response. If Defendant fails to produce responsive documents in compliance with its representation, Plaintiff may meet and confer with Defendant and seek relief pursuant to Code of Civil Procedure section 2031.320(a) if appropriate.

Plaintiff also contends “Defendant again limited it is production to ‘all non-privileged documents’ . . . but failed to describe with particularity what, if any, documents that are being withheld on privilege grounds or under what privilege the documents are being held.” (Reply at 3:20-24.) The Court agrees that Defendant must provide a privilege log. (Best Products, Inc. v. Superior Court (2004) 119 Cal.App.4th 1181, 1189; Catalina Island Yacht Club v. Superior Court (2015) 242 Cal.App.4th 1116, 1128.)

The motion is GRANTED as to Requests Nos. 16, 17, 30, 31, 37, 38, and 50-55. Defendant must provide a further response that includes an adequate privilege log.

Requests Nos. 18, 22-28, 39, and 41-43

In reply, Plaintiff contends Defendant “now asserts that responsive documents are in GameStop’s possession” in response to Requests Nos. 18, 22-28, 39, and 41-43. Plaintiff cites Code of Civil Procedure section 2030.220(c) and Deyo, supra, (Reply at 4:2-16), which govern interrogatories, not requests for production. Defendant’s supplemental responses referring to GameStop comply with Code of Civil Procedure section 2031.230. There is no evidence demonstrating Defendant has any control over GameStop’s records and the Court shall not compel a further response on this basis. As this is the only ground upon which Plaintiff maintains an objection to the responses, the motion is DENIED as to Requests Nos. 18, 22-28, 39, and 41-43.

Sanctions

Pursuant to Code of Civil Procedure sections 2030.300(d) and 2031.310(h), the Court shall impose monetary sanctions against any party or attorney “who unsuccessfully makes or opposes a motion to compel further response . . . , 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.” Similarly Code of Civil Procedure section 2031.320(b) provides, “the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel compliance with a demand, 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.”

In the initial motion, Plaintiff sought sanctions in the amount of $2,210.00 consisting of 5.2 hours of attorney time at a rate of $425.00 per hour. (Gil Decl. ¶ 9.) The Court finds both parties acted with substantial justification in making and opposing the motion and declines to impose sanctions.