Judge: Nathan Vu, Case: 30-2022-01287996, Date: 2023-07-24 Tentative Ruling

Motion to Compel Discovery

Plaintiff Sergio Carrillo Liviero’s Motion to Compel Defendant’s Responses to Special Interrogatories, Set One, and for Sanctions, is GRANTED.

Defendant Rockstar Staffing, LLC is ORDERED to serve full, complete, and verified further responses to Special Interrogatory Numbers 2-5 and 13-17, within 30 days of service of the notice of ruling.

The court ORDERS that Defendant Rockstar Staffing, LLC pay to Plaintiff Sergio Carillo Liviero sanctions in the amount of $ 1,770 (3.8 hours x $450 per hour in reasonable attorney’s fees and $60 in motion filing fees) within 30 days of service of the notice of ruling.

Defendant Rockstar Staffing, LLC’s evidentiary objections to the Declaration of Melissa Newman Avila are OVERRULED.

Plaintiff Sergio Carillo Liviero moves to compel further responses to Special Interrogatory Numbers 2-5 and 13-17, and for monetary sanctions against Defendant Rockstar Staffing, LLC (Defendant Rockstar).

Standard to Compel Further Responses to Interrogatories

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.)

Meet and Confer on Motions to Compel Further Responses

A motion to compel further responses to a request for production must include a meet and confer declaration consistent with Civil Procedure Code section 2016.040. (Code Civ. Proc., § 2031.310, subd. (b)(2).) In turn, Section 2016.040 requires that the moving party have made “a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (Code Civ. Proc., § 2016.040.)

The meet-and-confer requirement “is designed ‘to encourage the parties to work out their differences informally so as to avoid the necessity for a formal order . . . .’ This, in turn, will lessen the burden on the court and reduce the unnecessary expenditure of resources by litigants through promotion of informal, extrajudicial resolution of discovery disputes.” (Townsend v. Superior Court (1998) 61 Cal.App.4th 1431, 1435, quoting McElhaney v. Cessna Aircraft Co. (1982) 134 Cal.App.3d 285, 289.) This “requires that there be a serious effort at negotiation and informal resolution” and “that counsel attempt to talk the matter over, compare their views, consult, and deliberate.” (Townsend v. Superior Court, supra, 61 Cal.App.4th at pp. 1438-1439.)

As the Court of Appeal has explained:

A determination of whether an attempt at informal resolution is adequate also involves the exercise of discretion. The level of effort at informal resolution which satisfies the “reasonable and good faith attempt” standard depends upon the circumstances. In a larger, more complex discovery context, a greater effort at informal resolution may be warranted. In a simpler, or more narrowly focused case, a more modest effort may suffice. The . . . nature of the issues, the type and scope of discovery requested, the prospects for success and other similar factors can be relevant. Judges have broad powers and responsibilities to determine what measures and procedures are appropriate in varying circumstances. Judges also have broad discretion in controlling the course of discovery and in making the various decisions necessitated by discovery proceedings.

. . .

A single letter, followed by a response which refuses concessions, might in some instances be an adequate attempt at informal resolution, especially when a legitimate discovery objective is demonstrated. The time available before the motion filing deadline, and the extent to which the responding party was complicit in the lapse of available time, can also be relevant. An evaluation of whether, from the perspective of a reasonable person in the position of the discovering party, additional effort appeared likely to bear fruit, should also be considered. Although some effort is required in all instances, the level of effort that is reasonable is different in different circumstances, and may vary with the prospects for success. These are considerations entrusted to the trial court’s discretion and judgment, with due regard for all relevant circumstances.

(Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 431-433, citations omitted.)

Defendant Rockstar argues that Plaintiff’s efforts to meet and confer were not sufficient. However, on January 9, 2023, Defendant Rockstar requested and Plaintiff granted an extension for Defendant Rockstar to serve its responses. (See Decl. of Melissa Newman Avila in Supp. of Pltf.’s Mot. to Compel (Avila Decl.), ¶ 5, Exh. 2.) On February 20, 2023, Plaintiff’s counsel then sent a detailed meet-an-confer letter to Defendant Rockstar. (See id., ¶ 7, Exh. 4.) Plaintiff’s counsel further met and conferred with Defendant Rockstar’s counsel and Defendant Rockstar served supplemental responses. (See id., ¶ 8, Exh. 5.)

Plaintiff believed that the supplemental responses continued to be deficient and attempted to meet and confer further with Defendant Rockstar. ((See id., ¶¶ 8-9.) Paintiff’s counsel sent an e-mail to Defendant Rockstar’s counsel and called and left a message on March 23, 2023. (See id., ¶¶ 9-10.) Defendant Rockstar’s counsel responded but the parties were not able to resolve their differences. ((See id., ¶¶ 10-11.) These efforts to meet and confer by Plaintiff’s counsel were sufficient.

Employer Status

Defendant Rockstar argues that, because El Toro Carniceria, Inc. (El Toro) was Plaintiff’s employer, and El Toro was the entity that terminated Plaintiff’s employment, Defendant Rockstar is unable to provide any further responses to Special Interrogatory Numbers 2-5 and 13-17.

However, an employer includes employment agencies such as Defendant Rockstar. (See Cal. Code Regs., tit. 2, § 11008, subds. (d)(3), (f); Gov. Code, § 12926, subds. (d), (e).) Specifically, “[a]n individual compensated by a temporary service agency for work to be performed for an employer contracting with the temporary service agency is an employee of that employer for such terms, conditions and privileges of employment under the control of that employer. Such an individual also is an employee of the temporary service agency with regard to such terms, conditions and privileges of employment under the control of the temporary service agency.” (Cal. Code Regs., tit. 2, § 11008, subd. (c)(5).)

As the Court of Appeal has explained:

The [Fair Employment and Housing Council] defines “employee” as “[a]ny individual under the direction and control of an employer under any appointment or contract of hire or apprenticeship, express or implied, oral or written.” [The Fair Employment and Housing Act] thus requires an employment relationship, but that relationship need not be direct. Instead, the employment relationship must show the employer’s exercise of direction and control over the employee — the common-law “keystone of the employment relationship” — and other factors outlined in Vernon. Direction and control may be shown by, among other factors, whether the employee must obey instructions from the employer and whether “there was a right to terminate the service at any time.”

(Jimenez v. U.S. Continental Marketing, Inc. (2019) 41 Cal.App.5th 189, 197, citations omitted.) Thus, Defendant Rockstar may have been Plaintiff’s employer with respect to those “terms, conditions, and privileges” under the control of Defendant Rockstar.

Special Interrogatory Numbers 2-5 and 13-17

Special Interrogatory Number 1 asked for all reasons and facts why Plaintiff’s employment with Defendant Rockstar was terminated. Special Interrogatory Number 2 asked for all persons with knowledge regarding Defendant Rockstar’s response to Special Interrogatory Number 1. In response to Special Interrogatory Number 2, Defendant Rockstar responded “Not Applicable” because Defendant Rockstar had no knowledge that it was Plaintiff’s employer or that it had terminated Plaintiff.

Plaintiff presented evidence that Defendant Rockstar was his co-employer, if not his direct employer, as Plaintiff filled out Defendant Rockstar “Application for Employement [sic],” along with a W-4 and Employment Eligibility Verification. (See Avila Decl., Exh. 3.)

In addition, Charlene Mahoney, an owner of Defendant Rockstar, testified at her deposition that Defendant Rockstar was the company that helped assign Plaintiff to El Toro, and that El Toro paid Defendant Rockstar and Defendant Rockstar in turn issued paychecks to Plaintiff. (Decl. of Michael T. Larsen and Attached Exhibits in Supp. of Rockstar’s Opp’n, ¶ 14, Exh. N.) Charlene Mahoney also asserted that El Toro could terminate Plaintiff’s employment without obtaining Defendant Rockstar’s approval. (See ibid.)

Thus, the evidence shows that Defendant Rockstar understood or should have understood what Plaintiff meant when he referred to Defendant Rockstar as his employer. Further, even if Defendant Rockstar took the position that it had not been Plaintiff’s employer and that it had not initiated the termination of Plaintiff’s employment, Charlene Mahoney’s deposition testimony revealed that Defendant Rockstar understood relevant details of Plaintiff’s termination and that Charlene Mahoney was a person who had that knowledge.

At a minimum, Charlene Mahoney should have been identified in response to Special Interrogatory Number 2. For that reason, Defendant Rockstar’s response providing no information whatsoever was evasive and not “as complete and straightforward as the information reasonably available to the responding party permits,” and Defendant Rockstar did not “answer[] to the extent possible.”

Special Interrogatory Numbers 3-5 sought information regarding (#3) documents related to Plaintiff’s termination (#3), persons involved in the decision to terminate Plaintiff (#4), and the specific date the decision to terminate Plaintiff was made (#5).

Special Interrogatory Number 13 asked Defendant Rockstar to identify Plaintiff’s supervisors, while Special Interrogatory Number 14 asked Defendant Rockstar to describe Plaintiff’s job duties.

Special Interrogatory Numbers 15-17 asked for more information regarding the individuals who replaced Plaintiff (#15), when said individuals assumed Plaintiff’s job duties (#16), and documents that refer or relate to why Plaintiff was terminated (#17).

Defendant Rockstar responded “Not Applicable” in response to these special interrogatories on the basis that Defendant Rockstar was not Plaintiff’s employer and/or that it had not terminated Plaintiff’s employment.

As stated above, Exhibit 3 to the Avila Declaration shows that Defendant Rockstar knew or should have known why Plaintiff believed that Defendant Rockstar was one of his employers. Further, the deposition testimony of Charlene Mahoney reveals that Defendant Rockstar had knowledge of Plaintiff’s termination.

Thus, even if Defendant Rockstar took the position that it was not Plaintiff’s employer or that it was not the party that made the decision to terminate Plaintiff’s employment, Defendant Rockstar understood what information Plaintiff was seeking and it had some knowledge of this information or could have obtained this knowledge from sources under its control.

Defendant Rockstar was required to provide the information rather than wholly refuse to provide a substantive answer based on its assertion that Plaintiff’s version of the facts was incorrect. (See Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 406 [“a responding party generally may not respond to interrogatories just by asserting its ‘inability to respond’”]; see Deyo, supra, 84 Cal.App.3d at p. 782 [“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”].)

To be clear, the court is not ruling that Defendant Rockstar cannot take the position that it is not Plaintiff’s employer and that it did not terminate Plaintiff’s employment. Defendant Rockstar can make this clear in applicable objections in its responses.

However, in addition to those objections, Defendant Rockstar must provide non-evasive, complete, and straightforward answers to the extent possible. For example, in response to Special Interrogatory Number 13, rather than stating it “never supervised the Plaintiff,” Defendant Rockstar could have explained its role was to assign Plaintiff to work at El Toro and that Plaintiff never had any specific job duties with Defendant Rockstar. Further, an employee of Defendant Rockstar must have handled the paperwork that that created the relationship between Plaintiff and Defendant Rockstar and that assigned Plaintiff to El Toro. (See Avila Decl., Exh. 3 [David Mahoney executed Rockstar Staffing Agreement between El Toro and Defendant Rockstar]). This employee could have been identified as Plaintiff’s supervisor.

For the foregoing reasons, Plaintiff is entitled to further responses to Special Interrogatory Numbers 2-5 and 13-17.

Plaintiff shall give notice of this ruling.