Judge: Theresa M. Traber, Case: 21STCV11208, Date: 2022-12-07 Tentative Ruling

Case Number: 21STCV11208    Hearing Date: December 7, 2022    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     December 7, 2022                  TRIAL DATE: March 14, 2023

CASE:                         Jennifer Leighton, on behalf of all other aggrieved employees v. The RealReal, Inc., et al.

CASE NO.:                 21STCV11208           

MOTION TO COMPEL FURTHER RESPONSES TO AMENDED SPECIAL INTERROGATORIES (SET ONE); REQUEST FOR SANCTIONS

MOVING PARTY:               Plaintiff Jennifer Leighton

RESPONDING PARTY(S): Defendant The RealReal, Inc.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

            This is a PAGA action that was filed on March 23, 2021. Plaintiff alleges that Defendant intentionally misclassifies its California sales employees as exempt employees to deprive them of wage and hour law protections.

Plaintiff moves to compel further responses to Plaintiff’s Amended Special Interrogatories (Set One) and for sanctions. At the initial hearing on this motion on November 14, 2022, the Court denied Plaintiff’s motion to compel as moot, but continued the matter to this date on the issue of sanctions only.

TENTATIVE RULING:

            Plaintiff’s request for sanctions is DENIED.

DISCUSSION:

Plaintiff moves to compel further responses to Plaintiff’s Amended Special Interrogatories (Set One) and for sanctions. At the initial hearing on this motion on November 14, 2022, the Court denied Plaintiff’s motion to compel as moot, but continued the matter to this date on the issue of sanctions only. As briefing has been fully completed on the issue of sanctions, the Court will now rule on this matter.

Plaintiff seeks sanctions in the amount of $4,474.50 against Defendant and its counsel, jointly and severally, for misuse of the discovery process.

Code of Civil Procedure section 2023.030 authorizes the Court to impose monetary sanctions on any attorney engaging in the misuse of the discovery process by requiring that attorney to pay the reasonable expenses incurred by anyone as a result of that conduct. Code of Civil Procedure section 2030.300(d) requires the Court to impose sanctions against any party who unsuccessfully makes or opposes a motion to compel further responses to interrogatories, 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.

California Rules of Court, rule 3.1348, subdivision (a) states: “The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed.”

Defendant contends that sanctions are not warranted because the only reason responses were not provided was because Defendant was anticipating filing a petition to coordinate this action with a similar action pending in the Superior Court for the County of San Francisco, necessitating a stay in this action. (Declaration of Cheryl Orr ISO Supplemental Opp. ¶¶ 2-3.) On October 26, 2022, after this motion was filed, Defendant filed that petition, also requesting an interim stay of both actions. (Id. ¶ 5.) Defendant admits that it did not take steps to gather and produce responsive materials until after this Court denied Defendant’s ex parte request to stay the action pending a determination on the petition on November 4, 2022. (Id. ¶¶ 6-7.) According to Defendant, the failure to respond to Plaintiff’s discovery request was based on the reasonable belief that a stay was appropriate and would be issued. Defendant argues that, based on this belief and its prompt action after the Court’s November 4, 2022 denial of the stay request, imposition of sanctions would be unjust.

The Court is not persuaded by Defendant’s arguments. As Plaintiff states in the supplemental reply, Defendant refused to meet and confer with Plaintiff at any point before November 4, 2022 regarding its refusal to comply with the Belaire-West Process. Plaintiff states that efforts were made to meet and confer seven times, and each of those communications were ignored. Tellingly, Defendant’s papers are entirely silent as to Defendant’s response to Plaintiff’s efforts to meet and confer or otherwise resolve this dispute before November 4, 2022. Further, as Plaintiff also observes, Defendant took no proactive steps to seek a stay or otherwise act on its position regarding the procedural disposition of this case until after the Motion to Compel Further Responses was filed. Had Defendant taken affirmative steps in support of its position, the Court might be inclined to find substantial justification. Instead, Defendant sat on its hands and refused to communicate with Plaintiff regarding the discovery at issue until its position became untenable. The Court therefore finds that sanctions would be justified in this matter.

Plaintiff requests sanctions in the amount of $4744.50 against Defendant only.  (See Notice of Motion, p. 2.) But the conduct that gives rise to a potential sanctions award is a matter purely of legal tactics, rather than outright refusal to comply with discovery independent of the actions of Defendant’s counsel. The Court therefore finds that the imposition of sanctions against Defendant itself, exclusively, would be unjust.  Further, it would be a violation of due process to grant sanctions against defense counsel because they are not identified as the target of the sanctions request in Plaintiff’s notice.  (Code Civ. Proc. § 2023.040 [“A request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought.”])

CONCLUSION:

            Accordingly, Plaintiff’s request for sanctions is DENIED.

            Moving Party to give notice.

IT IS SO ORDERED.

Dated: December 7, 2022                               ___________________________________

                                                                                    Theresa M. Traber

                                                                                    Judge of the Superior Court

            Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.