Judge: Teresa A. Beaudet, Case: 21STCV02421, Date: 2023-05-04 Tentative Ruling

Case Number: 21STCV02421    Hearing Date: May 4, 2023    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

Background

On January 20, 2021, Plaintiff Fredy Vera Corona (“Plaintiff”) filed this action against Defendants Exquisite Apparel Corp. (“Exquisite Apparel”) and Affluent Staffing, LLC (“Affluent Staffing”) (jointly, “Defendants”). On April 26, 2021, Plaintiff filed the operative First Amended Complaint, which contains a single cause of action for violation of the Private Attorneys General Act.

On December 1, 2021, the Court issued an Order granting four motions to compel brought by Plaintiff. The Court’s December 1, 2021 Order provides, inter alia, that:

“The Court orders Exquisite Apparel to serve complete verified responses, without objections, to Plaintiff’s Special Interrogatories Set One, and Requests for Production of Documents, Set One, and to produce responsive documents to the Requests for Production of Documents, Set One, within 30 days of notice of this order. 

The Court orders Affluent Staffing to serve complete verified responses, without objections, to Plaintiff’s Special Interrogatories Set One, and Requests for Production of Documents, Set One, and to produce responsive documents to the Requests for Production of Documents, Set One, within 30 days of notice of this order. 

The Court further orders Exquisite Apparel and Affluent Staffing to each pay $1,605.80 to Plaintiff within 30 days of notice of this order.”

Plaintiff previously moved for an order compelling Affluent Staffing to comply with the Court’s December 1, 2021 Order, and for terminating, issue, evidence, and monetary sanctions against Affluent Staffing. Plaintiff also moved for an order compelling Exquisite Apparel to comply with the Court’s December 1, 2021 Order; and for terminating, issue, evidence, and monetary sanctions against Exquisite Apparel.

On October 6, 2022, the Court issued an Order denying Plaintiff’s motion against Affluent Staffing. Plaintiff’s motion against Exquisite Apparel was granted in part and denied in part. The Court granted Plaintiff’s request for monetary sanctions and ordered Exquisite Apparel to pay $6,431.65 to Plaintiff within 30 days of notice of the October 6, 2022 Order. Plaintiff’s motion for sanctions against Exquisite Apparel was otherwise denied. (See October 6, 2022 Order.)

Plaintiff now moves again for “an order seeking terminating, issue, evidentiary, and/or monetary sanctions against Defendant Affluent Staffing LLC…for its failure to comply with the Court’s December 1, 2021 Order Granting Plaintiff’s Motion to Compel Responses to Plaintiff’s Requests for Production, Set One…and Special Interrogatories, Set One…from Defendant and Request for Sanctions.”  Plaintiff also moves “for an order seeking terminating, issue, evidentiary, and/or monetary sanctions against Defendant Exquisite Apparel Corp…for its failure to comply with (1) the Court’s December 1, 2021 Order Granting Plaintiff’s Motion to Compel Responses to Plaintiff’s Requests for Production, Set One…and Special Interrogatories, Set One…from Defendant and Request for Sanctions…and (2) the Court’s October 6, 2022 Order granting Plaintiff additional sanctions against Defendant in the amount of $6,431.65 for failing to comply with the Court’s December 1, 2021 Order.”  No oppositions to the motions were filed.[1]

Discussion

Disobeying a court order to provide discovery is a misuse of the discovery process. (Code Civ. Proc., § 2023.010, subd. (g).) There are a broad range of sanctions available against anyone engaging in conduct that is a misuse of the discovery process, including the issuance of monetary, issue, evidentiary, and terminating sanctions. (Code Civ. Proc., § 2023.030.)  

A monetary sanction may be imposed against one engaging in the misuse of the discovery process. (Code Civ. Proc., § 2023.030, subd. (a).) An issue sanction may be imposed by way of an order that designated facts shall be taken as established or an order that prohibits any party from supporting or opposing designated claims or defenses. (Code Civ. Proc.,              § 2023.030, subd. (b).) An evidentiary sanction may be imposed by way of an order prohibiting any party engaging in the misuse of the discovery process from introducing designated matters in evidence. (Code Civ. Proc., § 2023.030, subd. (c).)¿¿

                        i.         Terminating Sanctions

The Court notes that Plaintiff’s notice of motion pertaining to Affluent Staffing indicates that Plaintiff moves “for an order seeking terminating, issue, evidentiary, and/or monetary sanctions against Defendant Affluent Staffing LLC…for its failure to comply with the Court’s December 1, 2021 Order...” (Affluent Staffing Notice of Mot. at p. 2:4-7.) However, Plaintiff appears to argue that Affluent Staffing failed to comply with both the Court’s December 1, 2021 Order and the Court’s March 27, 2023 Order following an Informal Discovery Conference (“IDC”). Plaintiff asserts in the Memorandum of Points and Authorities in support of the motion that Affluent Staffing has violated Code of Civil Procedure section 2023.010 by “its failure to produce all documents and information in response to Plaintiff’s SROG and RFP and failure to comply with the Court’s December 1, 2021 and March 27, 2023 Orders.” (Affluent Staffing Mot. at p. 8:8-10.)

As set forth above, the Court’s December 1, 2021 Order provides, inter alia, that “[t]he Court orders Affluent Staffing to serve complete verified responses, without objections, to Plaintiff’s Special Interrogatories Set One, and Requests for Production of Documents, Set One, and to produce responsive documents to the Requests for Production of Documents, Set One, within 30 days of notice of this order. The Court further orders Exquisite Apparel and Affluent Staffing to each pay $1,605.80 to Plaintiff within 30 days of notice of this order.”

As an initial matter, the Court notes that Plaintiff previously moved for an order compelling Affluent Staffing to comply with the Court’s December 1, 2021 Order, and for terminating, issue, evidence, and monetary sanctions against Affluent Staffing. The Court’s October 6, 2022 Order on such motion provides, inter alia, as follows:

“As an initial matter, Plaintiff’s counsel’s declaration in support of the reply pertaining to the Affluent Staffing motion indicates that ‘on September 8, 2022, Defendant produced supplemental responses to Requests for Production of Documents, Set One, Nos. 5 and 6 and produced additional time and payroll records for the aggrieved employees. Plaintiff is reviewing the supplemental production to confirm that it complies with the Court’s December 1, 2021 Order.’ (Alami Decl., ¶ 3.) Plaintiff also provides evidence that Affluent Staffing’s counsel indicated that Affluent Staffing’s portion of the sanctions had been mailed out. (Hyun Decl., ¶ 30, Ex. C.) Thus, the Court does not find that terminating sanctions are warranted against Affluent Staffing.” (October 6, 2022 Order at p. 4:2-10.)

In support of the instant motion, Plaintiff’s counsel states that “Affluent’s supplemental production identified 213 additional aggrieved employees (an increase from 63 to 276 total employees) and included some time and payroll records for these additional employees. Upon review and analysis of Affluent’s production for purportedly 276 total employees, Plaintiff discovered that the production was woefully incomplete since the dates of employment were incorrect or missing, phone numbers were missing, and the time and payroll production was incomplete.” (Hyun Decl., ¶ 24.)

            In addition, Plaintiff notes that on March 27, 2023, the parties participated in an IDC. The Court’s March 27, 2023 minute order provides, inter alia, that “[t]he parties attend the Informal Discovery Conference. The parties agree and the Court orders as follows: On or before 05/1/2023, Defendant Affluent Staffing, LLC will produce any additional employees’ time and payroll records (RFP No. 5-6), the start and end dates of the assigned employees (SR06 [sic] No. 1), and the phone numbers of all assigned employees in Defendants custody along with updated verified responses to the RFPs and Special Interrogatories.”

Plaintiff’s counsel states that “[o]n March 28, 2023, [he] e-mailed [Affluent Staffing’s counsel] a draft of the stipulation and proposed order reflecting the Court’s March 27, 2023 Order but Defendant failed to respond.” (Hyun Decl., ¶ 28.) Plaintiff’s counsel asserts that “[t]o date, Defendant has not responded to Plaintiff’s draft of the stipulation and proposed order reflecting the terms of the Court’s March 27, 2023 Order and has failed to produce the phone numbers and accurate dates of employment for the Aggrieved Employees (SROG No. 1), produce all time and payroll records for the Aggrieved Employees (RFP Nos. 5-6), and provide verified Code compliant, supplemental responses in violation of the December 1, 2021 Order.”[2] (Hyun Decl., ¶ 29.) Affluent Staffing did not file an opposition to Plaintiff’s motion and thus does not address the foregoing. 

However, the Court still does not find that the circumstances warrant the imposition of terminating sanctions against Affluent Staffing. The Court notes that other than the motions that were the subject of the December 1, 2021 Order, no previous motion to compel directed to Affluent Staffing has been granted. In addition, as discussed in the Court’s October 6, 2022 Order, after Plaintiff’s previous motion for sanctions was filed, Affluent Staffing produced supplemental responses to Requests for Production of Documents, Set One, Nos. 5 and 6. Moreover, the Court’s March 27, 2023 minute order following the parties’ IDC provides that “[o]n or before 05/1/2023, Defendant Affluent Staffing, LLC will produce any additional employees’ time and payroll records (RFP No. 5-6), the start and end dates of the assigned employees (SR06 No. 1), and the phone numbers of all assigned employees in Defendants custody along with updated verified responses to the RFPs and Special Interrogatories.” (Underline added.) The Court notes that the instant motion was filed on April 10, 2023, before Affluent Staffing’s May 1, 2023 deadline to produce additional documents and updated verified responses to the RFPs and Special Interrogatories in accordance with the Court’s March 17, 2023 minute order.   

In its motion pertaining to Exquisite Apparel, Plaintiff asserts that Exquisite Apparel has violated Code of Civil Procedure section 2023.010 by its “failure to respond to Plaintiff’s SROG and RFP and failure to comply with the Court’s December 1, 2021 and October 6, 2022 Orders.” (Exquisite Apparel Mot. at p. 7:13-14.) 

The Court notes that Plaintiff previously moved for an order compelling Exquisite Apparel to comply with the Court’s December 1, 2021 Order, and for terminating, issue, evidence, and monetary sanctions against Exquisite Apparel. The Court’s October 6, 2022 Order on such motion provides, inter alia, as follows:

“The Court also does not find that the circumstances warrant the imposition of terminating sanctions against Exquisite Apparel. The Court notes that other than the motions that were the subject of the December 1, 2021 Order, no previous motion to compel directed to Defendants has been granted, so there is no history of multiple discovery abuses to show that less severe sanctions would not produce compliance.”  (October 6, 2022 Order at p. 4:11-15.)

            The Court also noted in the October 6, 2022 Order that “Plaintiff provides evidence that Exquisite Apparel’s counsel requested an extension to January 23, 2022 to provided responses and documents, which request was granted by Plaintiff…Exquisite Apparel’s counsel then served the responses and documents on January 23, 2022, and indicated that he was still waiting on verifications but anticipated having them shortly…” (October 6, 2022 Order at p. 6:2-6.) The October 6, 2022 Order also provides that “the Court finds that monetary sanctions are warranted for Exquisite Apparel’s failure to comply with the December 1, 2021 Order. Exquisite Apparel did not oppose the instant motion and has not provided evidence that it served verifications as required by the Order.” (October 6, 2022 Order at p. 6:13-16.)  

In connection with the instant motion, Plaintiff’s counsel asserts that “[t]o date, Defendant has failed to pay sanctions, provide verifications, and produce documents in compliance with the Court’s December 1, 2021 and October 6, 2022 Orders.” (Hyun Decl.,         ¶ 25.) However, the Court still does not find that the circumstances warrant the imposition of terminating sanctions against Exquisite Apparel. The Court notes that other than the motions that were the subject of the December 1, 2021 Order, no previous motion to compel directed to Exquisite Apparel has been granted. In addition, the Court notes that Exquisite Apparel was not ordered to provide discovery responses in connection with the October 6, 2022 Order, rather, it was ordered to pay monetary sanctions. As set forth above, Plaintiff seeks sanctions against Exquisite Apparel for Exquisite Apparel’s asserted failure to comply with the October 6, 2022 Order. Pursuant to Code of Civil Procedure section 2023.030, “the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose the following sanctions against anyone engaging in conduct that is a misuse of the discovery process…” (Code Civ. Proc., § 2023.030, emphasis added.)

As to both Defendants, the Court notes that “the sanctioned party’s history as a repeat offender is not only relevant, but also significant, in deciding whether to impose terminating sanctions.” (Liberty Mutual Fire Ins. Co. v. LcL Administrators, Inc. (2008) 163 Cal.App.4th 1093, 1106.) “A decision to order terminating sanctions should not be made lightly. But where a violation is willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules, the trial court is justified in imposing the ultimate sanction.” (Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 279-280.) The Court does not find that the evidence here shows that less severe sanctions would not produce compliance with the discovery rules. 

                       ii.         Issue and Evidentiary Sanctions

As to both Defendants, Plaintiff seeks an order “providing an issue sanction directing the following issues be taken as established in the action and prohibiting Defendant from opposing such issues: Defendant employed Plaintiff and Aggrieved Employees, and violated the California Labor Code (‘Labor Code’) and Industrial Welfare Commission Wage Orders (‘IWC Wage Orders’) by failing to pay all wages (including minimum, regular, overtime, and double time wages), failing to provide meal and rest periods or compensation in lieu thereof, failing to timely pay all wages due upon separation of employment, failing to provide accurate itemized wage statements, failing to maintain accurate records of hours worked, and failing to reimburse business expenses to each Aggrieved Employee for each pay period during the Private Attorneys General Act (‘PAGA’) Period, i.e., from January 15, 2020 until judgment.”  (See Notices of Motion.)

In addition, as to both Defendants, Plaintiff seeks an order “issuing evidence sanctions that Defendant be prohibited from introducing evidence on the following matters: (1) whether Defendant paid Plaintiff and Aggrieved Employees all wages (including minimum, regular, overtime, and double time wages) for all hours worked; (2) whether Defendant’s rounding policy and practice favored Defendant by systematically undercompensating Plaintiff and Aggrieved Employees; (3) whether Defendant paid Plaintiff and Aggrieved Employees wages at the proper rates; (4) whether Defendant required Plaintiff and Aggrieved Employees to work off-the-clock without compensation; (5) whether Defendant provided Plaintiff and Aggrieved Employees with compliant meal periods or paid compensation in lieu thereof; (6) whether Defendant authorized and permitted compliant rest breaks to Plaintiff and Aggrieved Employees or paid compensation in lieu thereof; (7) whether Defendant failed to provide Plaintiff and Aggrieved Employees with accurate itemized wage statements; (8) whether Defendant failed to timely pay the Plaintiff and Aggrieved Employees all wages due immediately upon termination or within 72 hours of resignation; (9) whether Defendant failed to reimburse Plaintiff and Aggrieved Employees for necessary business expenditures; (10) whether Defendant’s conduct was willful or reckless; and (11) whether Defendant engaged in unfair business practices in violation of Business and Professions Code sections 17200, et seq.” (See Notices of Motion.)

The Court does not find that the requested issue or evidentiary sanctions are warranted against Affluent Staffing. As discussed, the Court’s March 27, 2023 minute order pertaining to the parties’ IDC provides that “[t]he parties agree and the Court orders as follows: On or before 05/1/2023, Defendant Affluent Staffing, LLC will produce any additional employees’ time and payroll records (RFP No. 5-6), the start and end dates of the assigned employees (SR06 No. 1), and the phone numbers of all assigned employees in Defendants custody along with updated verified responses to the RFPs and Special Interrogatories.” As discussed, Plaintiff’s motion pertaining to Affluent Staffing was filed on April 10, 2023, before Affluent Staffing’s May 1, 2023 deadline to produce additional documents and updated verified responses to the RFPs and Special Interrogatories in accordance with the Court’s March 17, 2023 minute order.  

As to Exquisite Apparel, Plaintiff’s counsel asserts that as of the date of the filing of the instant motion, Exquisite Apparel has “failed to…provide verifications, and produce documents in compliance with the Court’s December 1, 2021” Order. (Hyun Decl., ¶ 25.) However, as to the documents, the Court notes that the Court’s October 6, 2022 Order on Plaintiff’s previous motion provides, inter alia, “Plaintiff provides evidence that Exquisite Apparel’s counsel requested an extension to January 23, 2022 to provided responses and documents, which request was granted by Plaintiff. (Hyun Decl., ¶ 26, Ex. B.) Exquisite Apparel’s counsel then served the responses and documents on January 23, 2022, and indicated that he was still waiting on verifications but anticipated having them shortly. (Ibid.)” (October 6, 2022 Order at p. 6:2-6.) Thus, it appears that the remaining issue is Exquisite Apparel’s failure to provide verifications. As discussed, Exquisite Apparel does not oppose the instant motion or provide evidence that verifications were served.

Plaintiff asserts that the requested “issue sanctions are warranted because Plaintiff sought discovery on these issues via its SROG and RFP.” (Exquisite Apparel Mot. at p. 11:15-16.) Plaintiff similarly asserts that the evidentiary sanctions are warranted “as Plaintiff sought discovery on these issues via its SROG and RFP.” (Exquisite Apparel Mot. at p. 13:3-4.) However, the Court notes that Plaintiff does not explain how the requested issue and evidentiary sanctions are tied to any particular request for production of documents or special interrogatory to Exquisite Apparel. In addition, Plaintiff does not appear to provide a copy of the subject discovery requests to Exquisite Apparel in connection with the Exquisite Apparel motion. Thus, the Court will permit Plaintiff to provide further briefing as to the requested issue and evidentiary sanctions against Exquisite Apparel.

Monetary Sanctions

The Court does not find that monetary sanctions are warranted against Affluent Staffing based on the evidence presented. As discussed, Plaintiff’s motion pertaining to Affluent Staffing was filed before Affluent Staffing’s May 1, 2023 deadline to produce additional documents and updated verified responses in accordance with the Court’s March 27, 2023 minute order.

Plaintiff also asserts that “the Court should issue further monetary sanctions against [Affluent Staffing] in the amount of $6,656.65 for Defendant’s failure to timely provide the Court-Ordered monetary sanctions…” (Affluent Staffing Mot. at p. 14:28-15:1.) The Court notes that the Court’s October 6, 2022 Order did not award monetary sanctions against Affluent Staffing.

As to Exquisite Apparel, Plaintiff asserts that “the Court should issue further monetary sanctions against [Exquisite Apparel] in the amount of $6,806.65 for [Exquisite Apparel’s] failure to provide the Court-Ordered monetary sanctions and responses to Plaintiff’s discovery by the deadline prescribed in the December 1, 2021 and October 6, 2022 Orders.” (Exquisite Apparel Mot. at p. 14:2-4.) The Court notes that Plaintiff does not provide legal authority demonstrating that the Court may issue sanctions for a party’s failure to pay sanctions as previously ordered. As discussed, pursuant to Code of Civil Procedure section 2023.030, “the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose the following sanctions against anyone engaging in conduct that is a misuse of the discovery process…” (Code Civ. Proc., § 2023.030, emphasis added.) A failure to pay sanctions is not an identified “[m]issue[] of the discovery process” set forth in Code of Civil Procedure section 2023.010.

However, as discussed, Plaintiff provides evidence that Exquisite Apparel failed to provide verifications in accordance with the Court’s December 1, 2021 Order. (Hyun Decl.,        ¶ 25.) Plaintiff requests that the Court award monetary sanctions in the amount of $6,806.65 in connection with the Exquisite Apparel motion. (Hyun Decl., ¶¶ 28-32.) The Court finds that sanctions in the total amount of $5,371.65 is reasonable ($550/hour x 4 hours +  $500/hour x 6 hours = $5,200) + ($171.65 in fees and costs). The Court notes that Exquisite Apparel did not file an opposition to the motion, so the anticipated time for reviewing Exquisite Apparel’s opposition and preparing Plaintiff’s reply brief was not included. In addition, the Court deducted $85 in fees, as Plaintiff sought certain fees in connection with filing a reply. (Hyun Decl., ¶ 32.)   

Conclusion

Based on the foregoing, Plaintiff’s motion pertaining to Affluent Staffing is denied. 

The hearing on the Plaintiff’s motion pertaining to Exquisite Apparel is continued to ____________, 2023 at 10:00 a.m. in Dept. 50. On or before ___________, 2023, Plaintiff may file and serve a surreply with a supporting declaration concerning the requested issue and evidentiary sanctions against Exquisite Apparel, as discussed above. A courtesy copy of the surreply must be delivered to Dept. 50 concurrently with its filing.

Plaintiff is ordered to give notice of this Order. 

DATED:  May 4, 2023                                   ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court