Judge: Salvatore Sirna, Case: 22PSCV00060, Date: 2023-02-21 Tentative Ruling

Case Number: 22PSCV00060    Hearing Date: February 21, 2023    Dept: G

Plaintiff Sharine Forbes’ Motion to Compel Further Production of Documents and Things Set One and Request for an Order Awarding Monetary Sanctions

Respondent: Defendant Pomona Valley Home Care, Inc.

TENTATIVE RULING

Plaintiff Sharine Forbes’ Motion to Compel Further Production of Documents and Things, Set One, is DEEMED MOOT.

Plaintiff’s Request for an Order Awarding Monetary Sanctions is GRANTED and sanctions are awarded in the amount of $560, payable within thirty (30) days of the issuance of this order.

BACKGROUND

This is a wrongful termination action. On November 30, 2020, Plaintiff Sharine Forbes reached out to Shehzad Ahmed (Ahmed), the chief officer and administrator for Defendant Pomona Valley Home Care, Inc., and inquired about employment in the healthcare industry. After discussing a potential position with Plaintiff, Ahmed reached out to Plaintiff on December 7 and asked whether Plaintiff had thought about the position and salary offered. On December 8, Plaintiff accepted Ahmed’s offer and started in the new position on January 22, 2021.

On February 18, 2021, Plaintiff decided to resign from employment with Defendant but was convinced by Defendant’s employees to stay. A few days later, Plaintiff’s employment was terminated by Defendant’s management after Plaintiff had a disagreement with a fellow employee. Plaintiff was subsequently rehired and a contract memorializing the terms of Plaintiff’s employment was executed on March 1. On April 1, Plaintiff’s employment was terminated after allegedly informing Ahmed that Defendant had been persistently violating HIPAA laws.

On January 19, 2022, Plaintiff filed a complaint against Defendant and Does 1-10, alleging the following causes of action: (1) breach of employment contract, (2) breach of implied covenant of good faith and fair dealing, (3) wrongful termination in violation of public policy, (4) intentional infliction of emotional distress, (5) false promise, and (6) intentional misrepresentation.

On September 8, 2022, Plaintiff filed the present motion. A hearing on the motion is set for February 21, 2023. A hearing on a motion for summary judgment is also set for April 25, with a final status conference set on February 13, 2024, and a jury trial set for February 27.

ANALYSIS

Plaintiff moves to compel Defendant to provide additional responses to Plaintiff’s requests for production of documents numbers 11, 12, and 16.

Legal Standard

A party may file a motion compelling further production if it deems the responses are inadequate, incomplete, or evasive, or an objection in the responses is without merit or too general. (Code Civ. Proc., § 2031.310.) The motion shall be accompanied with a meet and confer declaration. (Code Civ. Proc., § 2031.310, subd. (b).) To prevail, the moving party must first offer specific facts demonstrating “good cause justifying the discovery sought by the demand.” (Code Civ. Proc., § 2031.310, subd. (b)(1).) This burden “is met simply by a fact-specific showing of relevance.” (TBG Ins. Services Corp. v. Superior Court (2002) 96 Cal.App.4th 443, 448.) If “good cause” is shown by the moving party, the burden shifts to the responding party to justify any objections made to document disclosure. (Kirkland v. Superior Court (2002) 95 Cal.App.4th 92, 98.)

The court must impose sanctions on a party who unsuccessfully makes or opposes a motion to compel further unless the party acted with substantial justification or other circumstances make imposing a sanction unjust. (Code Civ. Proc., § 2031.310, subd. (h).) However, “absent exceptional circumstances, the court shall not impose sanctions on a party or any attorney of a party for failure to provide electronically stored information that has been lost, damaged, altered, or overwritten as the result of the routine, good faith operation of an electronic information system.” (Code Civ. Proc., § 2031.310, subd. (j)(1).) 

Analysis

On March 28, 2022, Plaintiff propounded Requests for Production of Documents, Set One on Defendant. (Apemwoyah Kisob Alaric-Lorenzo Decl., ¶ 2.) On June 11, Defendant responded but did not provide documents requested in Requests for Production of Documents, Set One, Nos. 2, 11, 12, 13, 14, 16, 17, and 20. (Apemwoyah Kisob Alaric-Lorenzo Decl., ¶ 3-4.) On June 17, Plaintiff’s counsel emailed Defendant’s counsel and requested responses within seven days. (Apemwoyah Kisob Alaric-Lorenzo Decl., ¶ 4.) On June 27, Plaintiff’s counsel sent a follow-up email and received a reply from Defendant’s counsel who promised to respond “right away.” (Apemwoyah Kisob Alaric-Lorenzo Decl., ¶ 5.)

On July 11, 2022, Plaintiff’s counsel sent another follow-up email, warning Defendant’s counsel that Plaintiff would file a motion to compel if responses were not provided. (Apemwoyah Kisob Alaric-Lorenzo Decl., ¶ 6.) On July 14, Defendant’s counsel again promised a response. (Apemwoyah Kisob Alaric-Lorenzo Decl., ¶ 7.) After requesting responses on July 29 and August 9, Plaintiff’s counsel sent an email on August 23 that promised Plaintiff would file a motion to compel if responsive documents were not received by August 29. (Apemwoyah Kisob Alaric-Lorenzo Decl., ¶ 9-11.) While Defendant provided a one-page letter from Defendant’s new director of nursing on August 24, Plaintiff’s counsel alleges it was not responsive to Plaintiff’s requests. (Apemwoyah Kisob Alaric-Lorenzo Decl., ¶ 12.)

On February 14, 2023, Defendant’s counsel filed an untimely declaration in opposition to Plaintiff’s motion, claiming to have provided the requested responses. (Small Decl., ¶ 3, Ex. A.)  With the further responses having been provided, the court DEEMS MOOT Plaintiff’s motion to compel further.

Sanctions

Plaintiff also requests sanctions in the amount of $2,560. (Apemwoyah Kisob Alaric-Lorenzo Decl., ¶ 14.) This amount includes a total of five hours and sixteen minutes for researching and drafting the present motion at an hourly rate of $500 plus $60.00 in filing fee costs. While the court notes Plaintiff’s motion to compel further was not granted, “[t]he court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even . . . the requested discovery was provided to the moving party after the motion was filed.” (Cal. Rules of Court, Rule 3.1348, subd. (a).)

The court finds sanctions are appropriate under these circumstances.  Accordingly, utilizing a lodestar approach and in view of the totality of the circumstances, the court awards sanctions to Plaintiff and finds reasonable attorney fees and costs in the total amount of $560 ($500 for 2.0 hours drafting the motion and .5 hours for attending the hearing at $200 an hour, plus $60 for filing fees.) 

Conclusion

Plaintiff Sharine Forbes’ Motion to Compel Further Production of Documents and Things, Set One, is DEEMED MOOT.

Plaintiff’s Request for an Order Awarding Monetary Sanctions is GRANTED.  Sanctions are awarded in the amount of $560, payable within thirty (30) days of the issuance of this order.