Judge Ronald F. Frank, Case 22TRCV00559 2023-01-20 Tentative Ruling

Judge: Ronald F. Frank, Case: 22TRCV00559, Date: 2023-01-20 Tentative Ruling

Case Number: 22TRCV00559 Hearing Date: January 20, 2023 Dept: 8

Tentative Ruling

HEARING DATE: January 20, 2023¿

CASE NUMBER: 22TRCV00559

CASE NAME: Rhonda Mims v. South Bay Home Care, Inc., et al

MOVING PARTY: Plaintiff, Rhonda Mims

RESPONDING PARTY: South Bay Home Care, although no Opposition filed

TRIAL DATE: Not Set

MOTION:¿ (1) Motion to Compel Further Responses as to Form Interrogatories, Set One, No. 3.6

(2) Motion to Compel Further Responses to Special Interrogatories, Set One, Nos. 22-30

(3) Motion to Compel Further Responses to Requests for Production of Documents, Set One, Nos. 66-76.

(4) Monetary Sanctions

Tentative Rulings: (1) Motion to Compel Further Responses as to Form Interrogatories, Set One, No. 3.6 is DENIED, without prejudice to it being pursued either in arbitration is the case is ordered to arbitration, or in the litigated case if the future hearing on the pending arbitration motion is denied. FROG 3.6 has no bearing on a potential defense to the arbitration motion

(2) Motion to Compel Further Responses to Special Interrogatories, Set One, Nos. 22-30 is GRANTED

(3) Motion to Compel Further Responses to Requests for Production of Documents, Set One, Nos. 66-76 is GRANTED

(4) Monetary Sanctions GRANTED in the amount of $2,800, the Court finding the claimed hourly rate to be considerably higher than reasonable under the circumstances

I. BACKGROUND¿

A. Factual¿

This motion to compel is seeks further responses to discovery requests propounded by Plaintiff Rhonda Mims (“Plaintiff”) concerning Defendant South Bay Home Care, Inc.’s (“Defendant”) purported arbitration agreement. Plaintiff asserts that these discovery requests are relevant because Defendant has filed a motion to compel arbitration, and Plaintiff seeks the requested discovery to aid in preparation of her opposition thereto. Defendant contends it is not required to respond substantively because it has requested that this action be stayed pursuant to

California Code of Civil Procedure section 1281.4. However, Plaintiff asserts that the motion to compel arbitration is not set to be heard until February 9, 2023. Plaintiff further contends that because there is no stay in this action, Plaintiff’s discovery is not improper or premature as it is narrowly focused on the issues raised by Defendant’s pending motion to compel arbitration.

Plaintiff contends that she agreed to stipulate that by providing substantive responses to Plaintiff’s arbitration-related discovery requests, Defendant was not waiving its right to move to compel arbitration. However, Defendant did not agree to this alleged proposal.

B. Procedural

On December 20, 2022, Plaintiff filed this motion to compel further discovery responses. No opposition has been filed. On January 12, 2023, Plaintiff filed a reply brief noting that Defendants’ opposition was required to be filed on or before January 6, 2023, but to date, no opposition has been filed. The Court weighs the lack of written opposition in deciding on monetary sanctions because an opposition might have explained why Defendant believed it was justified in refusing to provide substantive responses despite Plaintiff’s apparent citation of authority entitling it to pre-hearing discovery on arbitrability issues

¿III. ANALYSIS ¿

A. Motion to Compel Further Responses to Form Interrogatory 3.6

Plaintiff moves for an order compelling Defendant’s further response to Form Interrogatory 3.6.

“Any party may obtain discovery . . . by propounding to any other party to the action written interrogatories to be answered under oath.”¿ (Code Civ. Proc., § 2030.010, subd. (a).)¿¿ “The party to whom interrogatories have been propounded shall respond in writing under oath separately to each interrogatory by any of the following: (1) An answer containing the information sought to be discovered[;] (2) An exercise of the party's option to produce writings[;] (3) An objection to the particular interrogatory.”¿ (Code Civ. Proc., § 2030.210, subd. (a).)¿“On receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that any of the following apply: (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[;] (3) An objection to an interrogatory is without merit or too general.”¿ (Code Civ. Proc., § 2030.300, subd. (a).)¿

Here, Form Interrogatory 3.6 asks: “Have you done business under a fictitious name during the past 10 years? If so, for each fictitious name state: (a) the name; (b)the dates each was used; (c) the state and county of each fictitious name filing; and (d) the ADDRESS of the principal place of business.” In response to Form Interrogatory 3.6, Defendant stated: “Defendant objects to this Interrogatory on the following grounds: (1) the claims Plaintiff asserts in this action are governed by an arbitration agreement under which Defendant has moved to compel arbitration and for a stay of the court proceedings, and thus, the discovery served is improper and premature as the case has not been filed in the proper forum; (2) it seeks

information that is irrelevant and not reasonably calculated to lead to the discovery of admissible evidence; (3) it is overbroad in time and scope.”

The Court sustains this objection under the circumstances of this limited proceeding, i.e., discovery during the pendency of a motion to compel arbitration. Normally, the “facts necessary for a determination of its enforceability are proven by affidavits or declarations.” (Condee v. Longwood Management Corp. (2001) 88 Cal.App.4th 215, 218.) But from time to time a party opposing an arbitration motion seeks to conduct discovery bearing on defenses to the motion such as the statutory defense of waiver or rescission. (See Code Civ. Proc. § 1281.2(a0, (b.)) The moving papers make no showing as to how the Defendant’s past use of another name beards any relationship to a defense to the pending arbitration motion. Accordingly, the Court DENIES Plaintiff’s Motion to Compel Further Responses to Form Interrogatory 3.6 at this time, without prejudice to Plaintiff raising that with the arbitrator of this Court depending on the outcome of the arbitration motion.

B. Motion to Compel Further Responses to Special Interrogatories 22-30

Plaintiff moves for an order compelling Plaintiff’s further response to Special Interrogatories 22-30

Here, Special Interrogatories 22-30 ask:

22: “IDENTIFY all individuals who communicated with PLAINTIFF about an arbitration agreement on YOUR behalf.”

23: “DESCRIBE all communications YOU have with PLAINTIFF about an arbitration agreement

24: “DESCRIBE the manner in which YOU presented PLAINTIFF with an arbitration agreement.”

25: “IDENTIFY all persons who witnessed PLAINTIFF signing an agreement to arbitrate claims against YOU.”

26: “DESCRIBE all methods YOU have used to determine that PLAINTIFF signed an arbitration agreement, including all security measures and software programs used.”

27: “IDENTIFY all documents that YOU presented to PLAINTIFF at the same time as an arbitration agreement.”

28: “IDENTIFY all terms of the arbitration agreement that YOU explained to PLAINTIFF.”

29: “IDENTIFY all terms of the arbitration agreement that YOU contend that Plaintiff negotiated with YOU.”

30: “State the date and manner in which YOU first provided PLAINTIFF with a copy of a fully executed arbitration agreement

In response to all of the above interrogatories, Defendant responded with almost identical objections. After reading Defendant’s responses and objections, this Court does not find Defendant’s responses to be sufficient. As such, the Court GRANTS Plaintiff’s Motion to Compel Further Responses to Special Interrogatories 22-30.

California Code of Civil Procedure § 1281.4 “authorizes a stay only if a court has ordered arbitration of a question between the parties to an agreement, and the same question and the same parties are involved in the pending action.” (Leenay v. Superior Court (2022) 81 Cal.App.5th 553, 564–565.) The is no automatic stay of proceedings merely on the filing of a motion to compel arbitration. (Ross v. Blanchard (1967) 251 Cal.App.2d 739, 742.) Defendant’s objections raise whether the issue of whether a party moving to compel arbitration may refuse, on the ground of the pending motion, to provide discovery bearing on a potential defense to the arbitration motion. This Court holds that is not a valid objection.

There have been a number of state court precedents addressing whether a party opposing a motion to compel arbitration is entitled to discovery addressing potential defenses to such a motion. For example, in Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 412–413, the Court implicitly recognized the potential right of a plaintiff to discovery so as to oppose an arbitration motion, although this was in dicta because in that case the plaintiffs did not assert they had insufficient time to conduct discovery before the hearing or that they sought and were refused discovery of any matter pertinent to the enforceability of the arbitration clause. Relying on Rosenthal, the Fourth District in Bouton v. USAA Casualty Ins. Co. (2008) 167 Cal.App.4th 412, 427 ruled that “parties to a Code of Civil Procedure section 1281.2 proceeding have discovery rights under the Civil Discovery Act, subject to the relevancy requirement and other provisions limiting the scope and timing of that discovery.” In Aronow v. Superior Court (2022) 76 Cal.App.5th 865, 884, the First District held that when a party opposes a motion to compel arbitration on the ground of inability to pay the costs, the moving party can ask leave to conduct limited discovery directed only to the opponent's financial circumstances. And in Brown v. Wells Fargo Bank, NA (2008) 168 Cal.App.4th 938, 951, the Second District noted without ruling on the issue that the trial court had permitted discovery “regarding the circumstances of the execution of the arbitration agreement, in order to determine whether there

was evidence of fraud or unconscionability,” i.e., potential defenses to the enforceability of the arbitration provision.

[Plaintiff’s moving papers also cite to Engalla v. Permanente Medical Group Inc. (1995) 51 Cal.App.4th 134, without a pinpoint page cite and without noting that the California Supreme Court granted a petition for review and without noting that this cited appellate decision was reversed. (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951.) Counsel should be more careful in the future in citing cases without checking whether they have been overruled or reversed. The California Supreme Court decision in Engalla does not mention discovery as to a pending arbitration motion.]

In this Court’s view, these special interrogatories are tailored to address potential defenses to the enforceability of the arbitration agreement asserted by the Defendant. Answering these special interrogatories would not waive the Defendant’s right to compel arbitration and the delay engendered in answering them would not amount to a waiver of the right to compel arbitration. Instead, the discovery requests appear to the Court to be reasonably calculated to lead to evidence upon which Plaintiff could rely to oppose the arbitration motion. Because an arbitration motion deprives the Plaintiff of her or his selected forum for resolving the parties’ dispute, courts should be respectful of a fair process for determining which forum will be employed, a process that can include -- where timely requested -- discovery directly bearing on defenses to the arbitration motion.

C. Motion to Compel Further Responses to Requests for Production Nos. 66-76

When responding to a request for production of documents without producing the documents being requested, a respondent must provide: (a) a statement that the responding party will comply with the demand; (b) a representation that the party is unable to comply with the demand; or (c) an objection to the demand. (Code Civ. Proc., § 2031.210 (a).)

A motion for order compelling further responses “shall set forth specific facts showing good cause justifying the discovery sought by the demand.” (Code Civ. Proc., § 2031.310 (b)(1); Kirkland v. Superior Court (2002) 95 Cal.App.4th 92, 98 (Kirkland).) To establish “good cause,” it is sufficient that the moving party show the relevance of the sought-after information to the subject matter (e.g., how the information would tend to prove or disprove some issue in the case) and special facts justifying discovery (e.g., why such information is necessary for trial preparation or to prevent surprise at trial). (See Kirkland, at p. 98.) Upon the moving party’s satisfactory showing of “good cause,” the burden shifts to the responding party to justify its objections to document disclosure. (Ibid.)

Here, Requests for Production of Documents ask:

66: “All employee handbooks in their entirety that YOU contend contain an arbitration agreement applicable to PLAINTIFF’s employment with YOU.”

67: “All DOCUMENTS that EVIDENCE, REFER OR RELATE TO an agreement to arbitrate between YOU and PLAINTIFF.”

68: “All COMMUNICATIONS between YOU and PLAINTIFF that EVIDENCE, REFER OR RELATE TO an arbitration agreement.”

69: “All DOCUMENTS that support YOUR contention that PLAINTIFF electronically signed an arbitration agreement, including all DOCUMENTS purporting to authenticate PLAINTIFF’S electronic signature.”

70: “All DOCUMENTS that EVIDENCE, REFER OR RELATE TO YOUR policies, practices, and procedures for requiring PLAINTIFF to sign an arbitration agreement as a condition of her EMPLOYMENT with YOU.”

71: “All DOCUMENTS that YOU presented to PLAINTIFF at the same time as an arbitration agreement.”

72: “All DOCUMENTS that EVIDENCE, REFER OR RELATE TO YOUR policies, practices, and procedures for explaining the terms of YOUR arbitration agreement to PLAINTIFF.”

73: “All DOCUMENTS that EVIDENCE, REFER OR RELATE TO YOUR policies, practices, and procedures for negotiating the terms of YOUR arbitration agreement with PLAINTIFF.”

74: “All DOCUMENTS that EVIDENCE, REFER OR RELATE TO all terms of the arbitration agreement that YOU contend that Plaintiff negotiated with YOU.”

75: “All DOCUMENTS that EVIDENCE, REFER OR RELATE TO YOUR provision of a fully executed copy of an arbitration agreement to PLAINTIFF.”

76: “All DOCUMENTS that EVIDENCE, REFER OR RELATE TO the date on which YOU provided a fully executed copy of an arbitration agreement to PLAINTIFF.”

In response to all of the above Requests for Production above, Defendant responded with almost identical objections. After reading Defendant’s responses and objections, this Court overrules the objection and GRANTS the motion to order a verified written response and production of documents as to Requests for Production 67, 68, 69, and 70, 74 and 75. The Court DENIES the motion to compel as to RFPs 66, 71, 72, 73, and 76, without prejudice to Plaintiff raising that with the arbitrator or this Court depending on the outcome of the arbitration motion. In the Court’s view, the RFPs as to which the motion is being granted are tailored to address potential defenses to the enforceability of the arbitration agreement asserted by the Defendant. Producing the requested documents would not waive the Defendant’s right to compel arbitration and the delay engendered in doing so would not amount to a waiver of the right to compel arbitration.

D. Sanctions

Plaintiff has requested that this Court impose monetary sanctions against Defendant for failure to provide sufficient responses to its discovery requests. Code of Civil Procedure section 2023.030, subdivision (a) provides, in pertinent part, that the court may impose a monetary sanction on a party engaging in the misuse of the discovery process to pay the reasonable

expenses, including attorney’s fees, incurred by anyone as a result of that conduct. A misuse of the discovery process includes failing to respond or submit to an authorized method of discovery. (Code Civ. Proc., § 2023.010, subd.(d).)¿¿Sanctions are mandatory for a party making or opposing a motion, except when the party making or opposing the motion is determined by the Court to have been acting with substantial justification, or that other circumstances would render the imposition of sanctions unjust. (Code Civ. Proc., § 2031.300, subd. (c).)

Here, Defendant requested sanctions against Plaintiff and Plaintiff’s counsel in the sum of $5,800, representing the sum of attorneys’ fees incurred in bringing this motion (Declaration of Jill J. Parker (“Parker Decl.”), ¶ 17). Parker contends that she spent 5 hours preparing Plaintiff’s Notice of Motion and Motion to Compel Further Discovery Responses; Memorandum of Points & Authorities in Support Thereof, 3 total hours preparing Plaintiff’s Separate Statements for the 3 sub-motions, and does not include any time spent preparing her declaration, nor does it include any time that might have been spent reviewing Defendant’s anticipated opposition and drafting a reply thereto. Parker asserts that her billing rate in this matter is $725 an hour. The Court finds that hourly rate to be excessive, based on the sanctions motions or requests that the Court has reviewed in other litigated cases over the past 7 years, and because much of the legal work could have been delegated to a paralegal or junior associate at a much lower hourly rate. The Court will award $350 per hour as a more reasonable hourly rate, and awards $2,800.

Defendant provided no written opposition to the motions or sanctions requests. The Court thus has little foundation for determining any potential substantial justification for the outright refusal to provide any substantive response tot eh pending discovery.

III. CONCLUSION

¿ For the foregoing reasons, Plaintiff’s Motions to Compel Further Responses to Discovery Motions are GRANTED. Sanctions are awarded in the reduced amount of $2,800, payable within 30 days.

¿¿

Moving party is ordered to give notice.¿¿