Judge Thomas D. Long, Case 22STCV06702 2023-04-14 Tentative Ruling

On February 23, 2022, Plaintiff Sophia Perusset filed this action against Defendants Tutor Time Learning Centers LLC (“Tutor Time”) and Danika King (collectively, “Defendants”).

On October 12, 2022, Defendants filed a Request for Informal Discovery Conference regarding, in part, Plaintiff’s need to supplement responses to Request for Production Nos. 1, 2, 3-18, 20-31, 35-38, 41-47, 49, 50, 53-55, 58, 60, 61. An IDC was scheduled for December 16, 2022, which was continued to January 13, 2023. On January 5, 2023, the Court further continued the IDC to March 17, 2023.

On January 19, 2023, Defendants filed an ex parte application to continue the trial date and related dates so they could obtain Plaintiff’s outstanding supplemental discovery responses (including the RFPs) before the deadline for filing a motion for summary judgment. On January 20, 2023, Judge Stern heard the ex parte application and recommended that Judge Long grant the request at the continued hearing on February 1, 2023.

On February 1, 2023, the Court ordered, by agreement of the parties, that Plaintiff produce supplemental responses to the pending discovery no later than February 8, 2023.

On February 2, 2023, Plaintiff served supplemental responses, but she did not produce additional documents. (Cabada 03/08/2023 Decl. ¶ 10.)

On March 8, 2023, Tutor Time filed a motion to compel production of documents with a request for sanctions.

On March 9, 2023, the Court denied without prejudice Tutor Time’s two ex parte applications to compel Plaintiff’s compliance with discovery orders, but it “urge[d] the Plaintiff’s Counsel to bring the Plaintiff to compliance with all of the Court’s orders or otherwise face the potential consequences of issue preclusion and/or monetary sanctions.” The Court scheduled an Order to Show Cause Re: Issue Preclusion Sanctions Against Plaintiff and an Order to Show Cause Re: Monetary Sanctions Against Plaintiff for March 30, 2023. The Court also ordered supplemental briefing.

On March 14, 2023, Plaintiff served supplemental responses and document production. (03/23/2023 Opposition to OSC, Roven Decl. ¶ 15.) The Opposition to OSC, which contained counsel’s declaration and a copy of the supplemental production, is a single 246-page document consisting of the opposition, declaration, and 10 exhibits, with no electronic bookmarks.

According to Defendants, on the morning of March 30, 2023 (before the OSC hearing), Plaintiff supplemented her production with an additional 125 pages of documents. (Cabada 04/11/2023 Decl. ¶ 5 & Ex. E.)

At the March 30, 2023 OSCs, the Court ordered that Plaintiff provide redacted documents by electronic filing and service no later than April 7, 2023, and it permitted Tutor Time to file and serve a response by April 11, 2023. The Court continued the OSCs to April 14, 2023.

On April 5, 2023, Plaintiff’s counsel filed a declaration that attached a “true and correct copy of all of Plaintiff’s Document Production that was served on Defendants via electronic service.” (Gomez 04/05/2023 Decl. ¶ 2 & Ex. 1.) This single document consists of 554 pages with no electronic bookmarks. Plaintiff did not identify any specific documents that could resolve the pending discovery disputes and OSCs.

According to Defendants, Plaintiff’s April 5, 2023 supplemental production included an additional 137 pages of documents. (Cabada 04/11/2023 Decl. ¶ 6.)

On April 10, 2023, Plaintiff’s counsel filed a supplemental declaration. The declaration attached a copy of Plaintiff’s April 7, 2023 Further Supplemental Responses to Tutor Time’s Request for Production (Set One), with supplemental written responses to RFP Nos. 18, 21, 34, 48. (Gomez 04/10/2023 Decl. ¶ 2 & Ex. 1.)

On April 11, 2023, Defendants filed their supplemental briefing and a declaration.

Under the Court’s First Amended General Order for electronic filing, the table of contents and all attachments, including exhibits, must be bookmarked. (General Order No. 2019-GEN-014-00, at ¶¶ 6(b)-(d); California Rules of Court, rule 3.1110(f)(4).) Additionally, each accompanying document must be filed as a separate document. (General Order No. 2019-GEN-014-00, at ¶ 6(f).)

As noted above, Plaintiff’s counsel’s non-compliance with Court rules makes several of their filings nearly impossible to navigate without bookmarks, especially because Plaintiff’s counsel does not identify the specific documents that are allegedly responsive to the discovery disputes. If Plaintiff continues to file noncompliant documents, the Court may strike the filings or issue sanctions.

A court may impose an issue sanction ordering that designated facts must be taken as established in accordance with the claim of the party adversely affected by the misuse of the discovery process. (Code Civ. Proc., § 2023.030, subd. (b).) A court may also impose an issue sanction prohibiting any party engaging in the misuse of the discovery process from supporting or opposing designated claims or defenses. (Ibid.)

A. Plaintiff Will Be Precluded From Claiming Post-Employment Economic Damages.

At the March 30, 2023 OSCs, Plaintiff’s counsel emphasized Plaintiff’s supplemental response to RFP No. 48, identifying PERUSSET000183-PERUSSET000236 as the non-privileged documents in Plaintiff’s possession that pertain to her subsequent employment earnings. (See 03/23/2023 Opposition to OSC, Roven Decl. ¶ 15 & Ex. 10 [PDF p. 204].)

The documents at PERUSSET000183-PERUSSET000227 appear to be screenshot images from a phone, displaying earnings statements in varying amounts from an unidentified employer. (Gomez 04/05/2023 Decl., Ex. 1 [PDF pp. 177-221].) These statements show earnings dated March 10, 2022; March 25, 2022; April 8, 2022; April 26, 2022; May 10; 2022; May 26, 2022; June 10, 2022; July 8, 2022; November 10, 2022; February 10, 2023; and February 24, 2023.

The documents at PERUSSET000228-PERUSSET000236 are earnings statements from K&L Care Inc., showing monthly earnings from the October 2022, November 2022, December 2022, January 2023, and February 2023 pay periods. (Gomez 04/05/2023 Decl., Ex. 1 [PDF pp. 222-230].)

Despite counsel’s representation at the March 30, 2023 hearing, these were not all documents in Plaintiff’s possession or within Plaintiff’s ability to obtain.

On the morning of March 30, 2023, Plaintiff produced additional documents. (Cabada 04/11/2023 Decl. ¶ 5 & Ex. E.) These documents include earnings statements from McRory Pediatric Services Inc. for paychecks dated September 23, 2022 and October 3, 2022 (PERUSSET000299-PERUSSET000300). (Cabada 04/11/2023 Decl., Ex. E [PDF pp. 52-53].) Based on other documents within this production, it appears that Plaintiff worked for McRory Pediatric Services Inc. only from early September 2022 to early October 2022, and thus these two paychecks would show her full compensation from this employer.

On April 5, 2023, Plaintiff produced additional documents. (Cabada 04/11/2023 Decl. ¶ 6 & Ex. F.) These documents include illegible earnings statements; the Bates stamps and other documents show that this employer is Roman Empire Living Skills Inc. (PERUSSET000423- PERUSSET000438). (Cabada 04/11/2023 Decl., Ex. F [PDF pp. 177-192].) The production also includes duplicate earnings statements from K&L Care Inc. for October 2022, November 2022, December 2022, and January 2023 monthly earnings (PERUSSET000527- PERUSSET000530). (Cabada 04/11/2023 Decl., Ex. F [PDF pp. 281-284].)

Plaintiff’s April 7, 2023 supplemental written responses to RFP Nos. 18, 21, 48 identified additional Bates-stamped pages: PERUSSET000013-PERUSSET000020, PERUSSET000195-PERUSSET000227, PERUSSET000228-PERUSSET000236, PERUSSET000240-PERUSSET000252, PERUSSET000255-PERUSSET000559. (Gomez 04/10/2023 Decl., Ex. 1.) Some of these documents are already specifically discussed above. The documents at PERUSSET000013-PERUSSET000020 and PERUSSET000240-PERUSSET000252 are photographs of a computer screen showing an Indeed message inbox, email inbox, and related correspondence about applications and interviews. (Gomez 04/05/2023 Decl., Ex. 1 [PDF pp. 16-23, 234-246].) The documents at PERUSSET000255-PERUSSET000257 involve onboarding at Roman Empire. (Gomez 04/05/2023 Decl., Ex. 1 [PDF pp. 249-251].) The documents at PERUSSET000258- PERUSSET000260 are Plaintiff’s offer letter for McRory, including information about compensation, benefits, and perks. (Gomez 04/05/2023 Decl., Ex. 1 [PDF pp. 252-254].) The documents at PERUSSET000261- PERUSSET000296 are K&L Care’s response to Plaintiff’s demand for her personnel file, which includes some earnings statements already discussed above. (Gomez 04/05/2023 Decl., Ex. 1 [PDF pp. 255-290].) The documents at PERUSSET000297- PERUSSET000422 are documents from McRory, including paychecks discussed above. (Gomez 04/05/2023 Decl., Ex. 1 [PDF pp. 291-416].) The relevant documents within PERUSSET000423- PERUSSET000559 were previously discussed as part of Plaintiff’s April 5, 2023 document production. (See Cabada 04/11/2023 Decl. ¶ 6 & Ex. F.) In sum, Plaintiff’s April 7, 2023 supplemental written responses do not identify any additional relevant documents that were not already discussed by the Court.

Therefore, it appears that the only documents produced by Plaintiff to substantiate any post-employment lost earnings and economic damages are incomplete records from an unidentified employer (PERUSSET000183-PERUSSET000227), earnings statements from K&L Care from October 2022 to February 2023 (PERUSSET000228-PERUSSET000236), seemingly complete earnings statements from McRory (PERUSSET000299-PERUSSET000300), and illegible earnings statements from Roman Empire (PERUSSET000423- PERUSSET000438).

Plaintiff testified at her deposition that she was employed by Big Solutions beginning on January 25, 2022, for about six months. (Cabada 04/11/2023 Decl. ¶ 12 & Ex. J.) Plaintiff’s counsel declared, “I am informed and believe my client has made many attempts to obtain documentation from Big Solutions and Happy Family Behavioral Solutions but has been unsuccessful.” (Gomez 04/05/2023 Decl. ¶ 5.) There is no declaration from Plaintiff and no further explanation of these “many attempts.” On April 13, 2023 at 4:22 p.m.—after the Court posted its tentative ruling imposing sanctions—Plaintiff filed a declaration. Plaintiff declares that she “made multiple genuine efforts to obtain documents from my previous employers Big Solutions and Happy Family Behavioral Solutions by contacting them via telephone call,” and she was informed to obtain previous employee documentation from ADP.com. (Perusset Decl. ¶ 1.) Plaintiff did not find any documentation from Big Solutions and Happy Family Behavioral Solutions on ADP.com. (Perusset Decl. ¶ 2.) This sparse declaration is still insufficient to prove a good faith attempt to get the documents that have been requested for several months.

Despite many requests from Defendants, many orders from the Court, and several supplemental productions, Plaintiff still has not produced a complete record of her earnings after her employment with Defendants. Plaintiff’s failure to produce any records from Big Solutions and Happy Family Behavioral Solutions, in combination with her incomplete production of records from an unidentified employer and Roman Empire, must preclude her from being able to present evidence of her post-employment economic damages. Accurate post-employment economic damages cannot be calculated based on incomplete records and unknown sums.

Accordingly, the Court imposes issue sanctions. Plaintiff is not permitted to support a claim for post-employment economic damages after October 29, 2021. The Court orders that it must be taken as established that Plaintiff suffered no post-employment economic damages.

B. The Court Will Not Impose Issue-Preclusion Sanctions Regarding Plaintiff’s Emotional Distress.

Defendants contend that Plaintiff has not provided complete supplemental responses to RFP Nos. 22, 24, and 34, which are related to Plaintiff’s emotional distress and attempts to mitigate it. (Defendants’ Suppl. Brief at p. 5.)

Defendants’ October 12, 2022 Request for Informal Discovery Conference did not identify RFP No. 34 as being in dispute. Defendants’ March 8, 2023 ex parte application to enforce the February 1 order did not identify RFP No. 24 as being in dispute.

Tutor Time’s March 23, 2023 briefing regarding issue preclusion sanctions discussed only Plaintiff’s failure to produce documents related to her post-employment economic damages.

The March 30, 2023 OSC hearing also involved only Plaintiff’s evidence of post-employment economic damages.

Because Plaintiff has not been put on notice of the possibility of sanctions related to her emotional distress damages, Defendants’ request for such sanctions now is denied.

A court may impose monetary sanctions in the form of reasonable expenses and attorney fees incurred due to a party’s misuse of the discovery process. (Code Civ. Proc., § 2023.030, subd. (a).)

Tutor Time requests sanctions of $6,720.00. (Defendants’ Suppl. Brief at pp. 5-6.) This amount consists of $3,075.00 in attorney fees for the March 30, 2023 OSC and briefing, and at least $3,645.00 in attorney fees for this hearing and briefing. (See Cabada 04/11/2023 Decl. ¶¶ 15-16.) This amount is reasonable in light of the extended briefing and exhibits.

The Court awards Tutor Time monetary sanctions of $6,720.00, to be paid by Plaintiff within 21 days.

Tutor Time contends that Plaintiff failed to produce documents for Request for Production of Documents, Set One, RFP Nos. 9-15, 18, 20-26, 28-31, 34-38, 42, 43, 47, 50, 60, 61.

Tutor Time filed this motion on March 8, 2023, prior to Plaintiff’s multiple supplemental productions. Additionally, many of the RFPs in dispute request documents related to Plaintiff’s post-employment economic damages and mitigation thereof. In light of the Court’s order imposing issue-preclusion sanctions on this topic, much of the motion appears moot.

Accordingly, the Hearing on Motion to Compel Production of Documents is CONTINUED to _______________. Seven days before the hearing, the parties are ordered to file an amended joint separate statement for only the RFPs that remain in dispute. If the motion is now moot, Tutor Time shall withdraw the motion and cancel its hearing reservation.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. Parties intending to appear are encouraged to appear remotely and should be prepared to comply with Dept. 48’s new requirement that those attending court in person wear a surgical or N95 or KN95 mask.

Hon. Thomas D. Long

Judge of the Superior Court