Judge: Stephen I. Goorvitch, Case: 20STCV20365, Date: 2022-10-17 Tentative Ruling

Case Number: 20STCV20365    Hearing Date: October 17, 2022    Dept: 39

Francisca Orozco v. Nu Science Corporation, et al.
Case No. 20STCV20365

Motions to Compel

            Plaintiff Francisca Orozco (“Plaintiff”) filed this employment action against Nu Science Corporation (“Nu Science”) and Martin Miranda (“Miranda”) (collectively, “Defendants”).  This is a straightforward employment case.  Yet, the parties have abused the discovery process, serving excessive written discovery and overutilizing the discovery referee appointed by the prior judge.  Therefore, the Court issued a special case management order on June 29, 2022.

            Defendants filed 14 motions to compel Plaintiff to provide further discovery responses.  Specifically, Defendant seeks further responses to: (1) Form Interrogatories, General, sets one through ten (“FROGs”), (2) Form Interrogatories, Employment, set one, (3) Requests for Production of Documents, set one, and (4) Special Interrogatories, set one.  Miranda seeks to compel Plaintiff to provide further responses to Special Interrogatories, set one. 

As an initial matter, Defendants’ motions appear to be premised on their belief that Plaintiff did not serve original responses to written discovery.  A party responding to interrogatories or requests for production must serve the original responses on the propounding party, with copies on all other parties who have appeared in the action.  (Code Civ. Proc., §§ 2030.260, subd. (c), 2031.260.)  Defendants’ counsel asserts, without evidence or citation to authority, that Plaintiff served copies of the responses on Defendant, and that this copy is improper.  Defendant has verified responses from Plaintiff. 

Defendants’ motions also appear to be premised on their belief that Plaintiff’s responses are untruthful.  Defendant cannot move to compel further responses on the basis that Defendant does not believe Plaintiff’s responses to be true.  (Holguin v. Superior Court  (1972) 22 Cal.App.3d 812, 820, 821.)  Defendant’s remedy is to offer Plaintiff’s allegedly incomplete responses as admissions or as prior inconsistent statements to impeach Plaintiff at trial if Plaintiff seeks to introduce evidence she did not disclose in discovery.  (See Evid. Code, §§ 1220; 1235.)    

            The Court rules as follows:

            1.         Ten Motions to Compel Further Responses to FROG, General, Numbers 6.4, 6.5, and 6.7 – Denied.

            2.         Motion to Compel Further Responses to FROG, Employment, Set One – Denied.

            3.         Motion to Compel Further Responses to RPD, Set One

                        a.         RPD #2 – Denied.

                        b.         RPD #3 – Denied.

                        c.         RPD #4 – Granted.  Plaintiff’s counsel has not complied with Code of Civil Procedure section 2031.230, which requires him to “set forth the name and address of any natural person or organization known or believed by that person to have possession, custody, or control of that item or category of item.”  (Code Civ. Proc., § 2031.230.)  Plaintiff shall provide a further response identifying anyone who has possession, custody, or control of the deposition transcript.

                        d.         RPD #5 – Denied.

                        e.         RPD #7 through RPD #164 – Granted.  Plaintiff’s counsel has not complied with Code of Civil Procedure section 2031.230.

                        f.          RPD #169 through RPD #170 – Denied.

                        g.         RPD #172 through RPD #367 – Granted.  Plaintiff’s counsel has not complied with Code of Civil Procedure section 2031.230.

            4.         Defendants’ Motions to Compel Further Responses to Special Interrogatories – Denied.

5.         Sanctions – The Court declines to award sanctions to either side.  The Court concludes that both parties have engaged in discovery abuse and gamesmanship, both before the discovery referee and this Court, by failing to complete basic discovery without extraordinary levels of intervention.  As such, the Court finds that an award of sanctions to either side would be unjust.  (Code Civ. Proc., §§ 2030.290, subd. (c), 2031.300, subd. (c).)

6.         Deadline for Further Responses – Plaintiff’s counsel shall provide further responses to the RPDs at issue, in compliance with Code of Civil Procedure section 2031.230.  The responses shall be due within thirty (30) days. 

7.         Further Written Discovery – At the hearing on August 22, 2022, Plaintiff’s counsel indicated that he does not intend to propound further written discovery.  Defendants’ counsel indicated that he might propound additional written discovery, depending on the content of any supplemental responses.  The Court does not anticipate that further written discovery will be necessary based upon this order.  Therefore, the Court orders that the parties may not propound further written discovery without leave from the Court.

8.         Petition for Statement of Damages – The Court advances the hearing on Defendant’s petition for a statement of damages to November 21, 2022, at 8:30 a.m.  Any opposition and reply brief shall be due based upon statutory deadlines. 

9.         The Court orders the parties to meet-and-confer to schedule all depositions.  The Court orders the parties to file a stipulation and proposed order identifying all deponents and setting the date/time for each deposition.  The stipulation and proposed order shall be filed on or before November 14, 2022. 

10.       The Court orders the parties to meet-and-confer to schedule any defense medical examination(s).  If the parties agree to schedule a defense medical examination, they shall file a stipulation and proposed order with the relevant details on or before November 14, 2022.

CONCLUSION AND ORDER

            Based upon the foregoing, the Court orders as follows:

1.         The Court grants in part and denies in part Defendant’s motion to compel further responses to Requests for Production, set one.  Plaintiff’s counsel shall provide further responses to the RPDs at issue, in compliance with Code of Civil Procedure section 2031.230.  The responses shall be due within thirty (30) days.

2.         The Court closes written discovery.  The parties may not propound further written discovery without leave from the Court.

3.         The Court advances the hearing on Defendant’s petition for a statement of damages to November 21, 2022, at 8:30 a.m.

4.         The Court shall hold a further case management conference and trial setting conference on November 21, 2022, at 8:30 a.m.

5.         Defendant’s counsel shall provide notice and file proof of such with the Court.