Judge Nathan Vu, Case 30-2022-01268409 2023-07-31 Tentative Ruling

Judge: Nathan Vu, Case: 30-2022-01268409, Date: 2023-07-31 Tentative Ruling

Motions to Compel Discovery

Plaintiff Do Quynh Nhi Nguyen’s Motion to Compel Defendant Thanh Le Cong Do d/b/a OC 7$ to Provide Further Responses to Plaintiff’s Form Interrogatories – General, Set One is DENIED as to Form Interrogatory Number 14.1, and GRANTED as to Form Interrogatory Number 15.1.

Plaintiff Do Quynh Nhi Nguyen’s Motion to Compel Defendant Thanh Le Cong Do d/b/a OC 7$ to Provide Further Responses to Plaintiff’s Form Interrogatories – Employment Law, Set One is DENIED as to Form Interrogatory Number 216.1.

Plaintiff Do Quynh Nhi Nguyen’s Motion to Compel Defendant Thanh Le Cong Do d/b/a OC 7$ to Provide Further Responses to Plaintiff’s Special Interrogatories, Set One is DENIED as to Special Interrogatory Numbers 4 and 10, and GRANTED as to Special Interrogatory Number 3.

Plaintiff Do Quynh Nhi Nguyen’s Motion to Compel Defendant Thanh Le Cong Do d/b/a OC 7$ to Provide Further Responses to Plaintiff’s Request for Production, Set One is GRANTED in part and DENIED in part as to Request for Production Number 26.

The Motions to Compel are moot as the remainder of the interrogatories and requests for production.

Defendant Thanh Le Cong Do d/b/a OC 7$ is ORDERED to serve full, complete, and verified responses to Form Interrogatory Number 15.1 and Special Interrogatory Number 3, and Request for Production Number within 21 days of service of the notice of ruling, including all surveillance camera footage and other video in Defendant’s possession, custody, or control, in which Plaintiff appears.

The Court ORDERS Defendant Thanh Le Cong Do d/b/a OC 7$ to pay to Plaintiff Do Quynh Nhi Nguyen sanctions in the amount of $3,000 (6 hours x $500 per hour in reasonable attorney’s fees) within 21 days of service of the notice of ruling.

Plaintiff Do Quynh Nhi Nguyen moves to compel further responses from Defendant Thanh Le Cong Do d/b/a OC 7$ to:

Plaintiff’s Form Interrogatories – General, Set One, Numbers 2.1, 2.2, 2.3, 2.4, 2.5, 2.6, 2.7, 3.2, 3.6, 3.7, 12.4, 14.1, and 15.1;

Plaintiff’s Form Interrogatories – Employment Law, Set One, Numbers 200.1, 200.4, 201.1, 201.2, 201.3, 201.4, 201.5, 201.6, 201.7. 207.1, 207.2, 208.1, 208.2, 209.2, 211.1, 211.3, and 216.1;

Plaintiff’s Special Interrogatories, Set One, Numbers 3, 4, 10, 14, 15, 16, 18, 26, and 28; and

Plaintiff’s Request for Production, Set One, as to Numbers 1, 5, 6, 7, 8, 10, 11, 15, 23, 26, 49, 50, 51, 52, 53, 54, 55, 57, 58, 59, and 60.

Standard to Compel Further Responses to Interrogatories and Requests for Production

A party may move for an order compelling further responses to interrogatories on the grounds that: (1) an answer to a particular interrogatory is evasive or incomplete; (2) an exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate; or (3) an objection to an interrogatory is without merit or too general. (Code Civ. Proc., § 2030.300, subd. (a).)

“Parties must state the truth, the whole truth, and nothing but the truth in answering written interrogatories.” (Scheiding v. Dinwiddie Const. Co. (1999) 69 Cal.App.4th 64, 76; see Code Civ. Proc., § 2023.010, subd. (f) [making evasive response to discovery is misuse of discovery process].) Where the question is specific and explicit, it is improper to provide only a portion of the information sought or “deftly worded conclusionary answers designed to evade a series of explicit questions.” (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 783.) “If a person cannot furnish details, he should set forth the efforts made to secure the information. He cannot plead ignorance to information which can be obtained from sources under his control.” (Id. at p. 782.)

The Civil Procedure Code instructs the responding party that: “(a) Each answer in a response to interrogatories shall be as complete and straightforward as the information reasonably available to the responding party permits. (b) If an interrogatory cannot be answered completely, it shall be answered to the extent possible. (c) If the responding party does not have personal knowledge sufficient to respond fully to an interrogatory, 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)

If a timely motion to compel has been filed, the burden is on the responding party to justify any objection or failure fully to answer the interrogatories. (Coy v. Superior Court (1962) 58 Cal.2d 210, 220-221; Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255.)

A party also may move for an order compelling further responses to requests for the production of documents on the grounds that: (1) a statement of compliance with the request is incomplete; (2) a representation of inability to comply is inadequate, incomplete, or evasive; or (3) an objection in the response is without merit or too general. (Code Civ. Proc., § 2031.310, subd. (a).)

Supplemental Responses

In his Oppositions to the Motions to Compel, Defendant’s Counsel states that on or about July 21, 2023, Defendant served supplemental responses to most of the discovery requests at issue here. (See Opp’ns to Mots. to Compel, Exh. 1.) Defendant argues that as to those discovery requests for which supplemental responses were served, the Motions to Compel are therefore moot.

In response, Plaintiff does not argue that Defendant’s supplemental responses are deficient. Instead, Plaintiff contends that those discovery responses for which Defendant did not supplement remain inadequate. The court, therefore, assumes that the Motions to Compel are moot as to those requests for which supplemental responses were served.

Plaintiff also points out that Defendant’s Oppositions to the Motions to Compel were served and filed untimely. However, Plaintiff was able to respond with timely Replies. The court therefore will consider Defendant’s Oppositions in the interests of addressing the remaining issues in an efficient manner on the merits.

Form Interrogatories – General, Set One

Defendant did not supplement the following interrogatories and they are thus still at issue:

Form Interrogatory Number 14.1: The court sustains Defendant’s objection that the interrogatory is vague and ambiguous, particularly given the use of the word “INCIDENT.” Plaintiff defines INCIDENT as “Any and all events alleged in the complaint.” Form Interrogatory Number 14.1 asks whether or not Defendant contends that any person involved in the INCIDENT violated any statute, ordinance, or regulation. Given that the definition of “INCIDENT” does not identify any specific event or incident, but instead refers to all of the allegations contained in the 79 paragraphs of the Complaint, it is unclear to what conduct Plaintiff is referring. The court overrules all of Defendant’s remaining objections. The court must deny the Motion to Compel as to Form Interrogatory Number 14.1.

Form Interrogatory Number 15.1: The court overrules Defendant’s objections to Form Interrogatory Number 15.1. Form Interrogatory Number 15.1 is a general form interrogatory that allows a Plaintiff to discover the legal and factual basis of Defendant’s denials and affirmative defenses. While Defendant need not disclose expert discovery at this time, Defendant must nonetheless answer to the extent possible and must still provide the factual basis for Defendant’s denials and affirmative defenses. The court must grant the Motion to Compel as to Form Interrogatory Number 14.1.

Form Interrogatories – Employment, Set One

Form Interrogatory Number 216.1: Form Interrogatory Number 216.1 is duplicative of Form Interrogatory 15.1. The court has already ordered Defendant to serve further responses to Form Interrogatory Number 15.1. Defendant thus need not serve further responses to Form Interrogatory Number 216.1. The court must deny the Motion to Compel as to Form Interrogatory Number 216.1.

Special Interrogatories, Set One

Special Interrogatory Number 3: Special Interrogatory Number 3 requests Defendant to “[s]tate all WAGES that PLAINTIFF received while employed by YOU, and time periods

PLAINTIFF was paid those WAGES.” Defendant’s response states that “Plaintiff was paid $13 per hour by check and $11 per hour cash as requested by Plaintiff.”

This response is evasive and incomplete. The special interrogatory clearly seeks information about the total amount of wages that Defendant contends that it paid to Plaintiff and the time period over which those wages were paid. Defendant’s answer merely states the hourly rate that Plaintiff was paid. The court must grant the Motion to Compel as to Special Interrogatory Number.

Special Interrogatory Number 4: This interrogatory asks Defendant to “[s]tate the total rate at which PLAINTIFF was compensated, including WAGES, bonuses, incentive pay, and fringe benefits (including but not limited to profit sharing, retirement, group insurance, and 401(k)) during the RELEVANT TIME PERIOD.”

Defendant responded that Plaintiff was paid $13 per hour by check and $11 per hour in cash. The court must assume that this answer includes bonuses, incentive pay, and fringe benefits and finds that the response is sufficient. The court must deny the Motion to Compel as to Special Interrogatory Number 4.

Special Interrogatory Number 10: Special Interrogatory Number 10 requests that Defendant “IDENTIFY every PERSON responsible for conducting any anti-retaliation training YOU

provided to any employee employed by YOU at any location at which PLAINTIFF worked for

YOU during the RELEVANT TIME PERIOD.” Defendant asserts objections, but responds that there were no such persons. This response is substantive, although short, and is sufficient. The court must deny the Motion to Compel as to Special Interrogatory Number 10.

Request for Production, Set One

Request for Production Number 26: This request seeks any and all video recordings of Plaintiff made or obtained by the Defendant. Defendant responded by stating that after a diligent search, Defendant has found no documents responsive to this request.

Plaintiff argues that Defendant produced screenshots from Defendant’s surveillance camera system with Plaintiff in them, which Plaintiff argues must have come from a video recording. To the extent that Defendant has possession of surveillance camera footage with Plaintiff in it, Defendant must produce the entirety of those video recordings to Plaintiff. The response to the Request for Production Number 26 is otherwise sufficient. The court will grant in part and deny in part the Motion to Compel as to Request for Production Number 26.

Sanctions

The Civil Procedure Code requires the court to impose monetary sanctions against a party, person, or attorney who unsuccessfully makes or opposes a motion to compel further responses, “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., §§ 2030.300, subd. (d), 2031.310, subd. (h), & 2033.290 subd. (d).) [Interrogatories, Requests for Production, and Requests for Admission]

California Rules of Court rule 3.1348(a) further provides that “[t]he court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed.” (Cal. Rules of Court, rule 3.1348(a).

If the results of the motion to compel are mixed, the trial court has the discretion to apportion sanctions or award no sanctions on any terms as may be just. (See Mattco Valley Forge v. Arthur Young & Co. (1990) 223 Cal.App.3d 1429, 1437.)

Although Defendant supplemented his responses to the discovery requests at issue, he did so only after more than 5 months. Defendant has not provided substantial justification for his tardiness nor has he presented any circumstances that would make the imposition of sanctions unjust. The same is true for those discovery requests for which the court granted the Motions to Compel.

However, the amount of time spent by Defendant’s counsel to prepare the motions was excessive in light of the duplicative nature of many of the motions. In addition, Plaintiff did not prevail with respect to every discovery request contained in the Motions to Compel. The court will thus reduce the sanctions accordingly.

Plaintiff shall give notice of this ruling.