Judge Upinder S. Kalra, Case 21STCV07894 2022-08-25 Tentative Ruling

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On February 26, 2021, Plaintiff Maurilio Wilcox (“Plaintiff”) filed a complaint against Defendants Molina Healthcare, Inc., Zahrah Green and Does 1 through 20 (“Defendants”), asserting 13 causes of action: (1) Wrongful Termination in Violation of the Fair Employment and Housing Act (“FEHA”), (2) Discrimination in Violation of the CFRA, (3) Retaliation in Violation of the CFRA, (4) Interference with, Restraint, and Denial of Medical Leave in Violation the CFRA, (5) FEHA Violations Based Upon Disability Discrimination, (6) Violation of Business & Professions Code § 17200 et seq., (7) Failure to Provide Reasonable Accommodations in Violation of Gov’t Code §§ 12940 et seq., (8) Failure to Engage in a Good Faith Interactive Process in Violation of Gov’t Code §§ 12940 et seq., (9) FEHA Violations Based Upon Retaliation, (10) Wrongful Termination in Violation of Public Policy, (11) Retaliation in Violation of Labor Code §1102.5, (12) Interference with, Restraint, and Denial of Family Leave in Violation of the CFRA, and (13) Hostile Work Environment in Violation of Gov’t Code §§ 12940 et. seq.

The Complaint alleges the following. Plaintiff started working for the Defendants in 2008. In 2019, Plaintiff sustained injuries while driving and notified the Defendants about the accident and later physical therapy. Later in 2019, Plaintiff completed the adoption of his child and took leave to bond with the child, which was scheduled to last until March 2020. Before this return date, Defendant contacted Plaintiff to return sooner. The return date was later rescheduled to August 2020 because of Plaintiff’s back pain. However, Defendants informed the Plaintiff had voluntarily resigned by not returning and later stated that Plaintiff was terminated on August 17, 2020, due to failure to provide ADA form, which Plaintiff could not obtain until August 24, 2020.

On April 4, 2022, Plaintiff filed 3 Motions to Compel Further, one for Form Interrogatories, one for Request for Admissions, and one for Requests for Production of Documents.

If a party to whom interrogatories are directed fails to serve a timely response, the propounding party may move for an order compelling responses and for a monetary sanction. (Code Civ. Proc. § 2030.290, subd. (b).) The statute contains no time limit for a motion to compel where no responses have been served. All that need be shown in the moving papers is that a set of interrogatories was properly served on the opposing party, that the time to respond has expired, and that no response of any kind has been served. (Leach v. Superior Court (1980) 111 Cal.App.3d 902, 905-906.)

Unverified discovery responses are tantamount to no response at all, and are subject to a motion to compel responses (rather than a motion to compel further responses). (Appleton v. Superior Court (1988) 206 Cal. App. 3d 632, 635-36.)

Under California Code of Civil Procedure section 2023.030, subd. (a), “[t]he court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct. . . . If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction 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.” Failing to respond or to submit to an authorized method of discovery is a misuse of the discovery process. (Code of Civ. Proc. § 2023.010.)

Pursuant to Code of Civil Procedure section 2033.280, subdivision (b), a “party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted, as well as for a monetary sanction under Chapter 7 (commencing with section 2023.010).” The court “shall” grant the motion to deem requests for admission admitted “unless it finds that the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with Section 2033.220.” (Code Civ. Proc. § 2033.280, subd. (c).)

Sanctions are mandatory in connection with a motion to deem matters specified in a request for admissions as true and motions to compel responses to interrogatories and requests for production of documents against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel unless the court “finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc. §§ 2030.290, subd. (c), 2031.300, subd. (c), 2033.280, subd. (c).)

The propounding party may bring a motion to compel further responses to a demand for production if the propounding party deems that production is deficient, incomplete, or contains meritless objections. CCP § 2031.310(a). The legal burden to justify refusing or failing to provide discovery lies with the objecting party. (Coy v. Superior Court (1962) 58 Cal.2d 210, 220).

The motion must be accompanied by a good-faith meet-and-confer declaration. CCP § 2031.310(b). “A determination of whether an attempt at informal resolution is adequate . . . involves the exercise of discretion.” (Stewart v. Colonial W. Agency (2001) 87 Cal.App.4th 1006, 1016). “The history of the litigation, the nature of the interaction between counsel, the nature of the issues, the type and scope of discovery requested, the prospects for success and other similar factors can be relevant. Judges have broad powers and responsibility to determine what measure and procedures are appropriate in varying circumstances.” Id.

CCP § 2031.310 provides the court shall apposes monetary sanctions against a person, party, or attorney that unsuccessfully makes or opposes a motion to compel further response, unless that subject to sanction acted “with substantial justification or other circumstances make the imposition of sanctions unjust.” CCP § 2023.010(h). The court “may impose a monetary sanction” against any attorney or party, or both, to pay the reasonable expenses, including attorney fees, if there has been a “misuse of the discovery process. CCP § 2023.030(a). “A trial court has broad discretion when imposing a discovery sanction.” (Lee v. Lee (2009) 175 Cal.App.4th 1553, 1559).

(a) On receipt of a response to requests for admissions, the party requesting admissions may move for an order compelling a further response if that party deems that either or both of the following apply:

(1) A motion under subdivision (a) shall be accompanied by a meet and confer declaration under Section 2016.040.

(2) In lieu of a separate statement required under the California Rules of Court, the court may allow the moving party to submit a concise outline of the discovery request and each response in dispute.

(c) Unless notice of this motion is given within 45 days of the service of the verified response, or any supplemental verified response, or any specific later date to which the requesting party and the responding party have agreed in writing, the requesting party waives any right to compel further response to the requests for admission.

(d) The 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 to compel further response, 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.

(e) If a party then fails to obey an order compelling further response to requests for admission, the court may order that the matters involved in the requests be deemed admitted. In lieu of, or in addition to, this order, the court may impose a monetary sanction under Chapter 7 (commencing with Section 2023.010).

Notice of motions to compel further responses to requests for admissions (“RFAs”), production of documents (“RPDs”), and interrogatories (“ROGs”) must be given within 45 days of service of the verified responses, supplemental verified responses, or a specific later date that the parties have agreed to in writing. (Civ. Code Proc., §§ 2033.290, subd. (c); 2031.310, subd. (c); 2030.300, subd. (c).) If not, the requesting party waives any right to compel further responses to the requests.

“‘Failure to [timely move to compel] within the specified period constitutes a waiver of any right to compel a further response; indeed, similar provisions have been held at least quasi-jurisdictional. [Citations.]’ [Citation.] We do not believe the 45–day limitation is ‘jurisdictional’ in the fundamental sense, but is only ‘jurisdictional’ in the sense that it renders the court without authority to rule on motions to compel other than to deny them.” (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410 [emphasis added]; see also Weinstein v. Blumberg (2018) 25 Cal.App.5th 316, 322, fn. 3 [“[D]iscovery deadlines are mandatory and we have treated them as jurisdictional [citation], even though a trial court may grant relief from deadlines to file motions to compel. Where a party does not obtain trial court relief from the statutory deadline, ‘failure to move for further answers within the statutory time forecloses further relief ....’ [Citation]”].)

Plaintiff’s counsel states in his declarations that Defendant served its initial responses to the RFAs, RPDs, and ROGs on or about October 4, 2021. (Motions, LaCour Decl., ¶¶ 6-7.) 45 days from October 4, 2021, was November 18, 2021.

The parties have failed to indicate whether Defendant served the responses via electronic service, mail, or other method such that the 45-day deadline was extended by the relevant Code of Civil Procedure sections regarding service. (Cf. Civ. Code. Proc., § 1010.6(a)(4)(B) [extending by two court days any duty to do any act after service of a document by electronic means].) There is no proof of service attached to Defendant’s initial responses. (RFAs Motion, Exhibit B; RPDs Motion, Exhibit B; ROGs Motion, Exhibits C-D.)

Indeed, upon receiving Defendant’s initial responses, Plaintiff noticed the responses were incomplete, vague, and contained improper objections. (Motions, LaCour Decl., ¶ 9.)

Nevertheless, instead of filing the motions by November 18, 2021, Plaintiff sent Defendant a meet and confer letter that day regarding the discovery requests. (Motions, LaCour Decl., ¶ 11.) In his meet and confer letter, Plaintiff asked Defendant if it would be agreeable to extend Plaintiff’s motions to compel deadlines to December 6, 2021. (RFAs Motion, Exhibit C, p. 12, last paragraph; RPDs Motion, Exhibit C [same], ROGs Motion Exhibit E [same].) However, by December 6, 2021, Plaintiff had not yet heard anything from Defendant. (Motions, LaCour Decl., ¶ 12.) By this time, it was 63 days since Plaintiff had received Defendant’s allegedly inadequate responses to the discovery requests.

In his motions, Plaintiff states that the parties “mutually agreed” to extend Plaintiff’s deadline to file the motions sometime before December 6, 2021, and cites Paragraph 12 of his counsel’s declaration as evidence. (RFAs Motion, p 5:11-15; ROGs Motion, p. 5:18-22; RPDs Motion, p. 5:16-19.) However, nowhere in Plaintiff’s counsel’s declaration states that the parties agreed to extend Plaintiff’s deadline to file the motions. (Motions, LaCour Decl., ¶ 12.) Instead, counsel only says that Plaintiff decided to give Defendant until December 6, 2021, to supplement its responses. (Motions, LaCour Decl., ¶ 12.)

In addition, the relevant statutes require that if the parties agree to extend the 45-day deadline, they should do so “in writing.” (See Code of Civil Procedure §§ 2033.290, subd. (c) (emphasis added) [“Unless notice of this motion is given within 45 days of the service of the verified response, or any supplemental verified response, or any specific later date to which the requesting party and the responding party have agreed in writing, the requesting party waives any right to compel further response to the requests for admission”]; 2031.310, subd. (c) [RPDs]; 2030.300, subd. (c) [ROGs].) Here, there is no evidence that the parties agreed to extend the 45-day deadline in writing.

Accordingly, the Court finds that Plaintiff has waived any right to compel further responses to the discovery requests at issue. Therefore, the Court denies Plaintiff’s motions and requests for sanctions.

Plaintiff Maurilio Wilcox’s motions to compel Defendant Molina Healthcare, Inc.’s responses to Plaintiff’s Requests for Admissions, Set One, Requests for Production of Documents, Set One, General Form Interrogatories, and Employment Law Form Interrogatories, are DENIED.

[1] Any citation to “Motions,” refers to the motions to compel collectively. The individual motions will be referred to as RFAs Motion, RPDs Motion, and ROGs Motion.