Judge Teresa A. Beaudet, Case 19STV28856 2023-03-13 Tentative Ruling

On August 14, 2019, Plaintiffs Felipe Neri (“Neri”) and Daniel Garcia (jointly, “Plaintiffs”) filed this action against Defendants Ibiza Partners, Inc., GJ United Group Inc. (“GJ United”), Jesus Gallegos (“Gallegos”), and Guillermo Rojas (“Rojas”). The Complaint asserts causes of action for (1) failure to pay minimum wage, (2) failure to compensate for all hours worked, (3) failure to pay overtime compensation, (4) failure to pay meal period compensation, (5) failure to pay rest period compensation, (6) failure to furnish accurate wage and hour statements, (7) failure to pay wages upon discharge, (8) statutory penalties, (9) retaliation, (10) national origin discrimination, (11) failure to take all steps to prevent harassment, (12) hostile work environment, (13) retaliation, (14) violation of the Private Attorneys General Act of 2004 (“PAGA”), and (15) violation of Business and Professions Code section 17200 et seq.

On July 19, 2022, Neri served a Notice of Deposition of the Person Most Qualified of Defendant GJ United and Request for Production of Documents (“The PMQ Deposition Notice”). (Olson Decl., ¶ 5, Ex. A.) The PMQ Deposition Notice lists 167 subjects the designated PMQ is to be “most qualified to testify on,” as well as 71 requests for production of documents. (Ibid.)

In addition, on July 19, 2022, Neri served a Notice of Deposition of Gallegos and Request for Production of Documents (the “Gallegos Deposition Notice”). (Olson Decl., ¶ 5, Ex. B.) The Gallegos Deposition Notice contains 71 requests for production of documents. (Ibid.)

On July 19, 2022, Neri served a Notice of Deposition of Rojas and Request for Production of Documents (“the “Rojas Deposition Notice”). (Olson Decl., ¶ 5, Ex. C.) The Rojas Deposition Notice contains 71 requests for production of documents. (Ibid.)

Defendants objected to each of the deposition notices. (Olson Decl., ¶ 7, Ex. D.) In addition, Defendants attempted to meet and confer with Neri’s counsel to limit the document demands and categories, but the parties could not reach agreement. (Olson Decl., ¶ 6.)

On December 5, 2022, the parties participated in an Informal Discovery Conference (“IDC”). The Court’s December 5, 2022 minute order provides, inter alia, that “[t]he parties fulfilled their IDC requirements regarding the topics set forth in their IDC statements filed on 10/04/22.”[1] The December 5, 2022 minute order also provides, “[p]ursuant to the request of plaintiff, the Hearing on Motion for Protective Order scheduled for 04/28/2023 is advanced to this date and continued to 02/15/23.”

GJ United, Gallegos, and Rojas (collectively, “Defendants”) now “move for a protective order directing the depositions of…(1) GJ United, Inc. PMQ; (2) Jesus Gallegos, and (3) Guillermo Rojas as noticed by plaintiff Neri be limited in scope, and that not all documents demanded with each noticed be produced…” Defendants also seek monetary sanctions. Plaintiffs oppose.

Pursuant to Code of Civil Procedure section 2025.420, subdivision (a), “[b]efore, during, or after a deposition, any party, any deponent, or any other affected natural person or organization may promptly move for a protective order. The motion shall be accompanied by a meet and confer declaration under Section 2016.040.”

Defendants note that pursuant to Code of Civil Procedure section 2025.420, subdivision (b), “[t]he court, for good cause shown, may make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. This protective order may include, but is not limited to, one or more of the following directions:… (5) That the deposition be taken only on certain specified terms and conditions…(9) That certain matters not be inquired into…(10) That the scope of the examination be limited to certain matters…(11) That all or certain of the writings or tangible things designated in the deposition notice not be produced, inspected, copied, tested, or sampled, or that conditions be set for the production of electronically stored information designated in the deposition notice.”

As an initial matter, Plaintiffs assert that Defendants’ counsel failed to meet and confer in good faith in advance of filing the instant motion. Plaintiffs note that Defendants’ counsel’s August 10, 2022 letter objecting to the deposition notices was sent only five days prior to August 15, 2022, the date the instant motion was filed. (Olson Decl., ¶ 7, Ex. D.) Plaintiffs also note that the August 10, 2022 letter does not specifically discuss any of the individual requests for production that are objected to in the instant motion. However, the Court notes that the parties participated in an IDC, and that Defendants’ counsel also indicates that “Defendants made several attempts in writing and by phone to meet and confer with opposing counsel to limit the document demands and categories.” (Olson Decl., ¶ 6.) The Court does not find that Plaintiffs have shown that there was a lack of any meet and confer efforts such that the motion should be denied on those grounds.

Defendants assert that “a discovery order is needed to protect deponents because though plaintiff Neri noticed three, plaintiff Garcia has indicated he too wants to depose defendants...” (Mot. at p. 7:10-11.) Defendants indicate that they “asked for confirmation that the notices were served on behalf of both plaintiffs,” but “[o]pposing counsel would not commit.” (Olson Decl., ¶ 8.) In the opposition, Plaintiffs assert that this issue is moot because Plaintiffs’ counsel agreed to only one set of depositions. (Sirmabekian Decl., ¶ 7, Ex. 6, p. 2.) In email correspondence, Plaintiffs’ counsel indicated “I’ll serve depo notices on behalf of both Plaintiffs.” (Ibid.)

Defendants also indicate that they offered to produce Gallegos for one session “as both party and PMQ,” but that “[o]pposing counsel would not commit.” (Olson Decl., ¶ 9.) Plaintiffs note that this issue is also moot, as Plaintiffs’ counsel indicated that “[w]e can Stipulate that Mr. Gallegos will be simultaneously deposed in his capacity as a PMK and a percipient witness.” (Sirmabekian Decl., ¶ 7, Ex. 6, p. 2.)

Defendants also assert that “[t]his court closed discovery on June 24, 2022. Plaintiffs are trying to circumvent the court’s order by having only one plaintiff notice three depositions, each with 71 document requests, and an absurd 167 categories of examination for the PMQ deposition.” (Mot. at p. 10:22-24.) The Court’s June 24, 2022 minute order provides, inter alia, that “[t]he nonexpert cut-off are not tied to the new trial date, except as follows: Plaintiff may take the deposition of the Defendants and Defendant may take the deposition of the Plaintiffs. Defendant must respond to the outstanding written discovery. The parties agree to meet and confer regarding possible subpoenas to parties or third parties. If no resolution, the parties must participate on an Informal Discovery Conference regarding this issue. The expert cut-off dates are tied to the new trial date.”

Plaintiffs assert that “the June 24, 2022 discovery Order clearly permitted depositions and depositions allow for the requirement that the deponent bring requested documents.” (Opp’n at p. 5:5-7.) Indeed, pursuant to Code of Civil Procedure section 2025.280, subdivision (a), “[t]he service of a deposition notice under Section 2025.240 is effective to require any deponent who is a party to the action or an officer, director, managing agent, or employee of a party to attend and to testify, as well as to produce any document, electronically stored information, or tangible thing for inspection and copying.”

Defendants also note that the Gallegos Deposition Notice and the Rojas Deposition notice each provide that “Plaintiff MIGUEL LOPEZ RAMIREZ (“Plaintiff”) will take the deposition of [Defendants Gallegos and Rojas]…upon oral examination.” (Olson Decl., ¶ 5, Exs. B-C.) These deposition notices thus appear to contain a typo, as Miguel Lopez Ramirez is not a plaintiff in this matter. Defendants assert that “[t]his inconsistency further renders the notices defective.” (Mot. at p. 8:11.) The Court notes that Defendants do not cite to any legal authority indicating that the subject typo renders the notices defective. In addition, the caption page of the deposition notices state “Plaintiff Felipe Neri’s Notice of Deposition…” (Olson Decl., ¶ 5, Exs. B-C.)

Defendants also assert that the Court should issue a protective order “to relieve them from the undue burden of having to produce an unspecified number of documents in response to plaintiff Neri’s seventy-one (71) separate document demands associated with each of three deposition notices served on defendants.” (Mot. at p. 3:3-6.) Plaintiffs counter that “[t]he objection based upon burden must be sustained by evidence showing the quantum of work required…” ((W. Pico Furniture Co. v. Superior Court (1961) 56 Cal.2d 407, 417.) As Plaintiffs note, Defendants do not provide any evidence demonstrating the quantum of work required to respond to the subject requests for production.

As to the documents requested in the deposition notices, Defendants assert that Plaintiff seeks documents that are not reasonably calculated to lead to the discovery of admissible evidence. Defendants assert that Requests Nos. 6, 18, 38, 39, 44, 45, 46, 47, 49, 50, 63, 64, 65, 66, 67, 68, 69, and 71 are irrelevant. (Mot. at p. 8:17-9:7.) In the opposition, Plaintiffs indicate that they agreed to withdraw certain requests in the deposition notices, including Requests Nos. 18, 38, 39, and 64-66. (Sirmabekian Decl., ¶ 7, Ex. 6, p. 2.) Thus, Defendants’ objections to these requests are moot. Plaintiffs also indicate that they would limit Request No. 68 to “Ibiza business.” (Ibid.) The Court does not find that Defendants have shown that the remaining Requests Nos. 6, 44, 45, 46, 47, 49, 50, 63, 67, 68 (as limited to Ibizia business), 69, or 71 are irrelevant. Many of the requests concern PAGA issues, and Plaintiffs allege a cause of action for violation of PAGA.

In addition, Defendants assert that “Plaintiff has repeatedly asked for the same category of documents said slightly different each time to increase the burden on defendants to respond.” (See Mot. at p. 9:8-18.) The Court does not find that the requests Defendants identify on page 9:9-17 of the motion are so duplicative such that a protective order is warranted. As Plaintiffs note, some of the requests might seek documents that are also responsive for a prior request.

Defendants also indicate that “Req. 34 and 35 were identical, Req. 52 and 53, Req. 55 and 56 are identical, Req. 58 and 59 are identical.” (Mot. at p. 9:17-18.) As set forth above, Plaintiffs indicate that they agree to withdraw Requests Nos. 34 and 35. As to the remaining requests, they are not identical, as they reference different names: “Ibiza Night Club & Restaurant” and “Ibiza Night Club Restaurant.” (Emphasis added.)

Defendants also assert that “Plaintiff has repeatedly asked for documents that were so overbroad or vague as drafted that no amount of compliance would ever be sufficient. Specifically, Requests 4, 11, 12, 13, 14, 20, 21, 23, 24, 25, 26, 27, 28, 29, 34, 35, 36, 37, 38, 40, 41, 42, 46, 48, 49, 64, 65, 66, 68, 69.” (Mot. at p. 9:19-21.) As discussed above, Plaintiffs indicate that they agreed to withdraw requests 12, 13, 14, 21, 23, 24, 26, 27, 34, 35, 37, 38, 40, 64, 65, and 66. (Sirmabekian Decl., ¶ 7, Ex. 6, p. 2, Ex. 7.) Thus, Defendants’ objections to these requests are moot. Plaintiffs also indicate that they would limit Request No. 68 to Ibiza business. (Sirmabekian Decl., ¶ 7, Ex. 6, p. 2.) The Court does not find that Defendants have shown that the remaining Requests Nos. 4, 11, 20, 25, 28, 29, 36, 41, 42, 46, 48, 49, 68 (as limited to Ibizia business) or 69 are overbroad or vague.

As to the PMQ Deposition Notice, Defendants assert that there are numerous categories of examination “not at issue in the complaint or not reasonably calculated to lead to the discovery of admissible evidence, many that are almost identical duplicates or substantially similar, or so vague, ambiguous, overbroad or terms undefined that compliance would be at the discretion of the noticing party.” (Mot. at p. 10:4-7.) But Defendants do not identify which categories they contend are not relevant, are duplicates, or are vague, ambiguous, and overbroad. The Court notes that Defendants raise new arguments in the reply concerning the categories in the PMQ Deposition notice, but “¿[p]oints raised for the first time in a reply brief will ordinarily not be considered, because such consideration would deprive the respondent of an opportunity to counter the argument.¿” (American Drug Stores, Inc. v. Stroh (1992) 10 Cal.App.4th 1446, 1453¿.)

The Court also notes that Plaintiffs assert that “the disclosure or production of employee wage statements, for example, should be subject to a Belaire-West opt-out process to allow the PAGA class members an opportunity to opt-out of being a PAGA member and having their work-related documents and wage statements disclosed in this action.” (Opp’n at p. 14:16-19.) Plaintiffs cite to Williams v. Superior Court (2017) 3 Cal.5th 531, 553, where the California Supreme Court noted that “[c]ourts subsequent to Belaire-West have uniformly applied the same analysis to reach the same conclusion: In wage and hour collective actions, fellow employees would not be expected to want to conceal their contact information from plaintiffs asserting employment law violations, the state policies in favor of effective enforcement of these laws weigh on the side of disclosure, and any residual privacy concerns can be protected by issuing so-called Belaire-West notices affording notice and an opportunity to opt out from disclosure.”

Defendants indicate that they would “enter into a stipulated protective order to allow Defendants to turn over employee contact information, timesheets and pay stubs. Or, we hire an administrator to mail out Belaire-Notices by 9/19/22 with a 21 day opt-out period after which Defendants would turn over the contact info and pay records.” (Sirmabekian Decl., ¶ 7, Ex. 6, p. 2.) In light of the foregoing, as well as Defendants’ failure to identify any particular requests which they assert raise privacy issues, the Court does not find that Defendants have demonstrated good cause for the issuance of a protective order.[2]

Lastly, each party seeks sanctions. Pursuant to Code of Civil Procedure section 2025.420, subdivision (h), “[t]he court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion for a protective order, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” The Court finds that the parties acted with substantial justification in presenting their positions and declines to award sanctions to either party.

[1]On October 4, 2022, the parties filed IDC Statements concerning the subject deposition notices and document requests therein.

[2] The Court encourages the parties to make use of the LA standard stipulated protective order.

Superior Court of California

County of Los Angeles

Department 50