Judge: Peter Wilson, Case: 2019-01104920, Date: 2023-08-17 Tentative Ruling

Plaintiff seeks orders compelling Defendant to supplement its responses to Special Interrogatories (Set Two), Nos. 17, 18, 19, 23, and 24, and Requests for Production of Documents (Set Two), Nos. 4, 5, and 6, and for monetary sanctions in the amount of $6,560 in fees and $60 in costs for each motion, for a total of $13,120 in fees and $120 in costs.

Special Interrogatories. The Motion to Compel is GRANTED as to SI Nos. 17, 18, 19, 23 and 24, for the reasons below. Except in response to SI No. 17, Defendant is ordered to provide objection-free, verified responses to SI Nos. 18, 19, 23 and 24 within 10 days. To be clear, the responses should not attempt to reassert any objection that the Court already found to be without merit in its 2/16/2023 Minute Order or contain prefatory, boilerplate objections, including privilege, since no privileged information has been withheld. Defendant is ordered to provide a verified response to SI No. 17 without objections, except for privilege, and identify the privilege asserted. If privilege is asserted but no documents or information are withheld, then Defendant must say so and the reason why no privilege log is necessary.

SI Nos. 17, 18, 19, 23 and 24. Defendant has provided verified further supplemental responses to these interrogatories. ROA 401, ¶8, p. 4:25, ¶9 and Ex. F and ¶10 and Exs. G and L; ROA 421, Reply, pp. 6-7 and Uwechue Decl., ¶8.

As to SI No. 17, as drafted, this interrogatory is ambiguous. The Court finds that Defendant’s interpretation that this interrogatory only seeks the date each employee was assigned to Capital Logistics’ Riverside location and not the last date of assignment is not unreasonable. As such, Defendant has provided an acceptable substantive response by producing a list of employees and their dates of hire, which Defendant contends is the date they were assigned to Capital Logistics’ Riverside location. 

Although Defendant could have responded to SI No. 17 without the disclosure of any privileged or confidential information since it only asks for dates, Defendant elected to produce an unredacted document that disclosed employees’ names pursuant to the Stipulated Protective Order, and as such, Defendant may assert privilege even though no documents or information was withheld. 

Plaintiff does not appear to take issue with the substantive responses to SI Nos. 18, 19, 23 and 24.

However, Plaintiff is correct that the responses are deficient and not compliant with this Court’s 2/16/2023 and 6/15/2023 Orders. The responses reassert objections the Court previously found to be without merit and prefatory boilerplate objections that implies information is withheld based on privilege. Yet, Defendant represents that no privileged information was withheld. ROA 421, Reply, p. 6:20-21 [“Once a Protective Order was in place and the Belaire Process completed nothing was withheld based upon objections”; “If nothing was withheld then only reformatted responses removing objections (out of respect for the Court) can be served and no privilege log is required.”]. Nor has any privilege log been provided as required based on the Court’s 2/16/2023 and 6/15/2023 Orders. ROA 401, ¶10 [“nothing was withheld on the grounds of privilege and all objections are cited to preserve Diamond’s rights at trial as permitted under the law.”] Accordingly, the Court again finds Defendant’s objections without merit.

SI Nos. 21 and 22. Defendant is correct that these Motions do not include SI Nos. 21 and 22.

Requests for Production of Documents. The Motion to Compel is GRANTED. Defendant is ordered to provide Code-compliant, verified responses to RPD Nos. 4, 5 and 6 without objection, except for privilege, within 10 days. To be clear, the responses should not attempt to reassert any objection that the Court already found to be without merit in its 2/16/2023 Minute Order or contain prefatory, boilerplate objections. If privilege is asserted, then Defendant must identify the specific privilege asserted and produce a privilege log. If Defendant will not produce a privilege then the reason for not doing so must be provided. 

RPD Nos. 4, 5, and 6 seek Defendant’s time records.

Defendant contends it has fully responded to RPD Nos. 4, 5 and 6, and provided verified supplemental responses and produced documents on June 7 and 13, 2023. ROA 401, ¶11, p. 5 and Exs. H and I. The same responses were re-served on July 12, 2023. ROA 420, Reply, p. 7:1-2 and Uwechue Decl., ¶10 and Ex. H.

The responses are deficient and fail to comply with the Court’s 6/15/2023 Minute Order. Each of these responses include prefatory boilerplate language reasserting objections that the Court already found to be without merit in its 2/16/2023 Minute Order. Although Defendant was permitted to assert privilege, the basis for the privilege has not been identified. Moreover, Defendant improperly asserts CCP § 2030.230 in response to RPDs when that Code section has no application and may only be used in response to interrogatories.

Importantly, the responses also violate CCP §§ 2031.220, 2031.230 and 2031.240. Specifically, Defendant was required to respond by (1) agreeing to comply, (2) representing it is unable to comply, or (3) objecting to all or part of the demand. (Code Civ. Proc. § 2031.010.) If Defendant can only comply with a part of the RPD, then it must so state and produce responsive documents sorted and labeled to correspond with the categories in the document demand. (Code Civ. Proc. §§ 2031.220 and 2031.280(a).) If Defendant is unable to comply in whole or in part, then it must so state and provide the reason why, such as the document never existed, has been lost or stolen, destroyed, or is not in is possession, custody or control and provide the name and address of the person who may have the document. (Code Civ. Proc. § 2031.230.)

The responses state that time cards / records in Defendant’s possession have been produced but does not identify if Defendant is complying in whole or in part. Defendant also does not represent an inability to comply in whole or in part. But as Plaintiff points out, the RPDs seek time cards from October 1, 2018 through December 30, 2022 and Defendant has only produced records pertaining to four months, i.e. September – December 2019. ROA 411, Jusuf Decl., ¶¶14-15, 25, 26 and Exs. 13 and 14. Defendant must state whether it will comply or has an inability to comply and the reason why as to October 2018 – August 2019 and January 2020 – December 2020. Whether Defendant has such records is significant because its response to SI No. 17 indicates Defendant should have time cards which have not been produced. The unredacted hire list produced in response to SI No. 17 shows employees were hired for Capital’s Riverside location at least by March 2019 and as late as February 2020 despite the representation in Defendant’s interrogatory responses that it did not have employees in California after December 2019. See ROA 401, ¶¶3-8, pp. 2-5, Ex. B [e.g. Armando Becerra and Francisco Becerra, hire dates 2/14/2020; Christopher Bonaminio, hire date 3/12/2019; Robert Carver, hire date 3/19/19] and Ex. E2.

Similarly, Defendant must state whether it will comply and produce records showing meal periods and rest breaks from October 1, 2018 – December 2022, or if it has an inability to comply and the reason why.

Sanctions.  The Court GRANTS monetary sanctions in Plaintiff’s favor and against Defendant and its counsel, Michael Adreani and Chinye Uwechue of Roxborough, Pomerance, Nye and Adreani, LLP, jointly and severally. Defendant and its counsel, Michael Adreani and Chinye Uwechue of Roxborough, Pomerance, Nye and Adreani, LLP are ordered to pay Plaintiff a total of $10,120 ($5,060 for the fees and costs incurred in connection with each Motion) within 30 days.

The request for issue and evidence sanctions is DENIED. The request for issue and evidence sanctions was not raised in the original Motions and was only raised in the body of the Supplemental Brief. There is no separate notice notifying Defendant that issue and evidence sanctions are sought, nor are they identified in the caption.

The parties are reminded to properly bookmark exhibits.

All counsel are directed to the Orange County Bar Association Civility Guidelines. The Court requires that those Guidelines be adhered to, in this case and all other cases before this Court.

Plaintiff is ordered to give notice.

The status conference remains on calendar.