Judge Theresa M. Traber, Case 22TCV15210 2023-05-05 Tentative Ruling

Judge: Theresa M. Traber, Case: 22TCV15210, Date: 2023-05-05 Tentative Ruling

Case Number: 22TCV15210 Hearing Date: May 5, 2023 Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE: May 5, 2023 TRIAL DATE: October 24, 2023

CASE: Molly Steele v. Burlington Medical, LLC, et al.

CASE NO.: 22STCV15210

MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR PRODUCTION; REQUEST FOR SANCTIONS x2

MOVING PARTY: Plaintiff Molly Steele

RESPONDING PARTY(S): Defendants Burlington Medical, LLC and Bar-Ray Products, Inc.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

This is an action for employment discrimination that was filed on May 6, 2022. Plaintiff alleges that she was wrongfully terminated based on her age and gender.

Plaintiff moves to compel further responses to requests for production propounded to Defendants Burlington Medical, LLC and Bar-Ray Products, Inc.

TENTATIVE RULING:

Plaintiff’s Motion to Compel Further Responses to Requests for Production (Set One) from Defendant Burlington Medical, LLC is GRANTED to the extent described herein.

Plaintiff’s Motion to Compel Further Responses to Requests for Production (Set One) from Defendant Bar-Ray Products, Inc. is GRANTED to the extent described herein. This order is conditioned on Plaintiff’s payment of $60 in filing fees to the Court within 10 days of this order.

Defendants are to provide verified, code-compliant responses without objections within 30 days of this order.

Plaintiff’s request for sanctions is DENIED.

DISCUSSION:

Motion to Compel Further Responses to Requests for Production (Burlington Medical, LLC)

Plaintiff moves to compel further responses to requests for production propounded to Defendant Burlington Medical, LLC.

Legal Standards

Under Code of Civil Procedure section 2031.310, subdivision (a), a court may order a party to serve a further response to a demand for inspection when the court finds that: “(1) A statement of compliance with the demand is incomplete[;] (2) A representation of inability to comply is inadequate, incomplete, or evasive[; or] (3) An objection in the response is without merit or too general.”

The burden is on the moving party to “set forth specific facts showing good cause justifying the discovery sought by the demand.” (Code Civ. Proc., § 2031.310, subd. (b)(1).) These facts must also be set forth in a separate statement filed by the moving party. (Cal. Rules of Court Rule 3.1345(c).) This burden “is met simply by a fact-specific showing of relevance.” (TBG Ins. Servs. Corp. v. Superior Court (2002) 96 Cal.App.4th 443, 448.)

Timeliness

A motion to compel further responses to requests for production must be served “within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the propounding party and the responding party have agreed in writing.” (Code Civ. Proc. § 2031.310(c).) The 45-day requirement is mandatory and jurisdictional. (Sexton v. Superior Court¿(1997) 58 Cal.App.4th 1403, 1410.)

Defendant Burlington Medical, LLC responded to the Requests for Production at issue on December 21, 2022. (Declaration of Rachael Sauer ISO Mot. ¶ 15, Exh. M.) The parties agreed to multiple extensions to the deadline to file this motion, first to February 15, 2023 (Sauer Decl. ¶ 16 Exh. N), then to March 3, 2023 (Id. ¶ 19 Exh. Q) and, finally, to April 14, 2023. (Id. ¶ 21 Exh. S.) This motion was filed and served on April 10, 2023. The motion is therefore timely.

Meet and Confer

A party making a motion to compel further responses must also include a declaration stating facts showing a “reasonable and good faith attempt” to resolve informally the issues presented by the motion before filing the motion. (Code Civ. Proc., §§ 2016.040, 2031.310, subd. (b)(2).)

The Declaration of Rachael Sauer provides extensive documentation of the parties’ meet and confer efforts between June 24, 2022 and the date this motion was filed. (Sauer Decl. ¶¶ 3-21; Exhs. B-S.) The Court therefore finds that Plaintiff has satisfied the statutory meet and confer obligations.

Good Cause

Plaintiff moves to compel further responses to Requests for Production Nos. 34 through 40 and 59 in its first set of requests for production.

Requests 34 through 40 seek all documents other than communications with Defendant’s counsel regarding any litigation or threatened litigation for each of the causes of action asserted in this action. (See Exh. B. Nos. 34-40.) These requests are not time-limited as drafted, but Plaintiff expressed in her meet and confer process a willingness to limit the scope of these requests to the last five years. (Exh. O.) Requests No. 59 seeks informal and formal complaints of FEHA violations in the last five years. (Exh. B. No. 59.)

“Me-too” evidence of other individuals who have been subjected to sufficiently similar discrimination or harassment is discoverable. (See Pantoja v. Anton (2011) 198 Cal.App.4th 87, 89; see also McCoy v. Pacific Maritime Assn. (2013) 216 Cal.App.4^th 283, 296-98.) As these requests directly pertain to the specific causes of action in the complaint, with the exception of Request No. 59, the Court finds that Plaintiff has demonstrated good cause for these requests. As to Request No. 59, the Court finds Plaintiff has not shown good cause to secure complaints about FEHA violations other than those related to age discrimination or gender discrimination, or retaliation connected to those protected categories, and on that basis, limits the scope of Request No. 59 to these types of complaints.

The Court refuses to consider Defendant’s arguments concerning the scope of these requests, as they are arguments based on Defendant’s untimely objections, which, as stated below, have been waived.

Defendant’s Responses

Defendant responded to each of the discovery requests at issue with a series of objections. According to Attorney Sauer’s declaration, Plaintiff served this discovery on Defendant on June 24, 2022 by mail. (Sauer Decl. ¶ 3.) The Court notes that the Proof of service on this discovery is dated June 6, 2022, but states it was executed on June 24, 2022. (Exh. B. POS.) However, Defendant does not dispute the date of service of this discovery request, nor does it dispute that discovery was not provided within 35 days, pursuant to Code of Civil Procedure section 2031.260. (See Declaration of Michael R. Minguet ISO Opp. ¶ 3.) Accordingly, by operation of Code of Civil Procedure section 2031.300(a), all objections were waived. (Code Civ. Proc. § 2031.300(a).)

In opposition, Defendant asks be relieved from its waiver of objections because Plaintiff served discovery, by mail, to Defendant’s corporate address, but did not advise Defendant’s counsel of that discovery until after the deadline to provide responses had passed. This request is improper, and Defendant’s argument in support is unpersuasive. The request is improper because Code of Civil Procedure section 2031.300 requires that a request for relief from waiver of objections be made on motion. (Code Civ. Proc. § 2031.300(a).) No such motion was ever filed with this Court. Further, Defendant makes no effort to show that the failure to serve timely responses was the result of mistake, inadvertence, or excusable neglect. Defendant’s contention that it was properly served by mail pursuant to Code of Civil Procedure section 1012 is not sufficient in this respect. Neither is the contention by defendant’s counsel that he was not aware of the outstanding requests until apprised by Plaintiff’s counsel that it was overdue, with no further explanation given for why that was the case. (Declaration of Michael R. Minguet ISO Opp. ¶ 3.)

Defendant’s responses, consisting entirely of objections, are not code-compliant, and Plaintiff is entitled to an order compelling further responses.

Sanctions

Plaintiff requests sanctions in connection with this motion and the motion addressed below in the amount of $2,817.50. Plaintiff’s notice of motion states that it seeks sanctions against “Defendant and/or its counsel of record,” without specifying to which Defendant it refers, or how it should be apportioned between the defendants named on these improperly conflated motions. To seek sanctions, the notice of motion must name all persons, parties and attorneys against whom sanctions are being sought. (Code Civ. Proc. § 2023.040.) An award of sanctions that has not been properly requested in a notice of motion does not comply with the statutory requirements and is a violation of the opposing party’s right to due process. (Id.) Further, the Court is not inclined to award sanctions when the party seeking sanctions has filed a pair of motions that are as procedurally tangled as these. The Court therefore finds that an award of sanctions in this case would be unjust. (Code Civ. Proc. § 2031.310.)

Conclusion

Accordingly, Plaintiff’s Motion to Compel Further Responses from Defendant Burlington Medical, LLC is GRANTED to the extent described herein.

Plaintiff’s request for sanctions is DENIED.

Motion to Compel Further Responses to Requests for Production (Bar-Ray Products, Inc.)

Plaintiff moves to compel further responses to requests for production propounded to Defendant Bar-Ray Products, Inc.

Two Motions in One

Multiple motions should not be combined into a single filing.¿(See¿Govt. Code,¿§ 70617(a)(4) [setting forth the required filing fee for each motion, application, or any other paper or request requiring a hearing];¿see¿also¿Weil & Brown, Civil Procedure Before Trial, [8:1140.1] at 8F-60 (The Rutter Group 2011)¿[“Motions to compel compliance with separate discovery requests ordinarily should be filed separately.”].)

Here, Plaintiff improperly combined two motions to compel further responses to Requests for Production (Set One) propounded to Burlington Medical and Bar-Ray Products into one filing. Accordingly, Plaintiff is ordered to pay an additional $60.00 in filing fees to have the additional motion heard within 10 days of the date of this order. The Court’s ruling on the additional motion is conditioned upon Plaintiff’s payment of these filing fees.

Legal Standards

Timeliness

Defendant Bar-Ray Products, Inc. responded to the Requests for Production at issue on December 9, 2022. (Declaration of Rachael Sauer ISO Mot. ¶ 13, Exh. K.) The parties agreed to multiple extensions to the deadline to file this motion, first to February 15, 2023 (Sauer Decl. ¶ 16 Exh. N), then to March 3, 2023 (Id. ¶ 19 Exh. Q) and, finally, to April 14, 2023. (Id. ¶ 21 Exh. S.) This motion was filed and served on April 10, 2023. The motion is therefore timely.

Meet and Confer

The Declaration of Rachael Sauer provides extensive documentation of the parties’ meet and confer efforts between June 6, 2022 and the date this motion was filed. (Sauer Decl. ¶¶ 2-21; Exhs. A-S.) The Court therefore finds that Plaintiff has satisfied the statutory meet and confer obligations.

Analysis

The parties agree that the propounded discovery and the responses at issue are identical to those in the first motion, as are the arguments. Here, the discovery was served by mail on June 6, 2022, and the parties do not dispute that timely responses were not provided. (See Sauer Decl. ¶ 2 Exh. A.) Accordingly, for the reasons already stated, Plaintiff is entitled to an order compelling further responses to the extent described above.

Sanctions

For the reasons stated above in connection with the first motion to compel further responses, the Court declines to award sanctions to Plaintiff.

CONCLUSION:

Accordingly, Plaintiff’s Motion to Compel Further Responses to Requests for Production (Set One) from Defendant Burlington Medical, LLC is GRANTED to the extent described herein.

Defendants are to provide verified, code-compliant responses without objections within 30 days of this order.

Plaintiff’s request for sanctions is DENIED.

Moving Party to give notice.

IT IS SO ORDERED.

Dated: May 5, 2023 ___________________________________

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.