Judge Upinder S. Kalra, Case 21STCV08923 2023-02-17 Tentative Ruling

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On March 8, 2021, Plaintiff Jose Mauricio Rivera (“Plaintiff”) filed a complaint against Defendant Henean Trucking Inc., (“Defendant.”) The complaint alleges 9 causes of action based on various Labor Code violations. Plaintiff alleges that they were hired by Defendant as a mechanic, working as a full-time, non-exempt employee. While working for Defendant, Plaintiff alleges that they were misclassified as exempt, and because of this misclassification, Plaintiff was not paid for all time worked, and was not allowed to take rest breaks.

On October 12, 2022, Plaintiff filed the current Motion to Deem RFAs Admitted (Set One.) On February 9, 2023, Plaintiff filed a Notice of Non-Receipt of Opposition. As of February 14, 2023, no Opposition has been filed.

On October 24, 2022, Plaintiff filed a motion to Compel Deposition of Defendant’s Employee.

On October 25, 2022, Plaintiff filed a motion to Compel Deposition of Defendant’s Person Most Knowledge and Production of Documents.

A party must respond to requests for admissions within 30 days after service of such requests. (Code Civ. Proc., § 2033.250, subd. (a).) “If a party to whom requests for admission are directed fails to serve a timely response…(a) [that party] waives any objection to the requests, including one based on privilege or on the protection for work product…” (Code Civ. Proc., § 2033.280, subd. (a).) The court may relieve this waiver if “(1) the party has subsequently served a response that is in substantial compliance with Section 2033.210, 2033.220, and 2033.230. and (2) the party’s failure to serve a timely response was the result of mistake, inadvertence, or neglect.” (CCP § 2033.280 (a)(1) and (2)). “The requesting 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.” (Id. at subd. (b).) A motion dealing with the failure to respond, rather than with inadequate responses, does not require the requesting party to meet and confer with the responding party. (Deymer v. Costa Mesa Mobile Home Estates (1995) 36 Cal.App.4th 393, 395, fn. 4 [disapproved on other grounds in Wilcox v. Birtwhistle (1999) 21 Cal.4th 973]. There is no time limit within which a motion to have matters deemed admitted must be made. (Brigante v. Huang (1993) 20 Cal.App.4th 1569, 1585.)

Defendant moves to have the Court deem the RFAs that were served on Defendant admitted.

Here, Plaintiff served discovery, specifically the Request for Admissions on Defendant on August 26, 2022. Responses were due on September 27, 2022. Defendant did not request any extension as to the discovery responses. Plaintiff’s counsel emailed and called Defendant’s counsel for other issues as to this matter, and counsel failed to return Plaintiff’s counsel’s calls or emails. (Motion 3: 14-18, Delos Santos Dec. § 6-7.) On October 11, 2022, Plaintiff’s counsel sent a meet and confer letter to Defendant’s counsel, requesting responses. (Dec. Delos Santos, Ex. 7.)

On February 16, 2023, counsel for Defendant filed proof of filing verified responses. Accordingly, the motion is moot. However, the Court is obligated to award sanctions.

Plaintiff argues they are entitled to monetary sanctions. CCP § 2033.280(c) provides “It is mandatory that the court impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) on the party or attorney, or both, whose failure to serve a timely response to requests for admission necessitated this motion.” Here, Plaintiff requests $2,811.65. This is based on an hourly rate of $550, based on 1 hour of work, with an anticipatory 4 hours for reviewing the opposition (1 hour), drafting the reply (1 hour), and attending the hearing (2 hours.) The court finds that sanctions are mandatory, but the requested amount is improper because Defendant has failed to provide an opposition. Therefore, sanctions are granted in the amount of $561.65, which includes the $61.65 filing fee.

Request for Sanctions is GRANTED, in the amount of $561.65, payable within 30 days by counsel of record.

On October 24, 2022, Plaintiff filed a motion to Compel Deposition of Defendant’s Employee.

On October 25, 2022, Plaintiff filed the current motion to Compel Deposition of Defendant’s Person Most Knowledge and Production of Documents. On February 9, 2023, Plaintiff filed a Notice of Non-Receipt of Opposition. As of February 14, 2023, no Opposition has been filed.

“If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party. . . without having served a valid objection under Section 2025.410, fails to appear for examination. . . the party giving the notice may move for an order compelling the deponent's attendance and testimony. . . . (Code Civ. Proc., § 2025.450(a).)

A party’s motion to compel the deposition of another party must comply with the requirements of Code of Civil Procedure Section 2025.450(b). Specifically,

(1) The motion shall set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information,¿or tangible thing described in the deposition notice.

(2) The motion shall be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produce the documents, electronically stored information,¿or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.

“If a motion under subdivision (a) is granted, the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) in favor of the party who noticed the deposition and against the deponent or the party with whom the deponent is affiliated, 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., § 2025.450(g).)

Here, Plaintiff served the Defendant with the Notice of Deposition as to Defendant’s PMK on August 26, 2022, with the set date for the deposition of September 27, 2022. The parties spoke over the phone about stipulating to a trial continuance and Defendant’s counsel indicated his unavailability for depositions. Plaintiff’s counsel requested from Defendant’s counsel alternative dates for the deposition, but Defendant’s counsel failed to respond to emails or phone calls, and failed to respond to a second Notice of Deposition set for October 11, 2022.

Defendant moves to have the Court compel Defendant to produce the Person Most Knowledgeable for deposition and produce documents.

Here, Plaintiff served the deposition notice on August 26, 2022, with a date for the deposition set to be September 27, 2022. Defendant requested a stipulation to continue the trial as Defendant’s counsel was unavailable for the requested deposition date. However, Plaintiff’s counsel emailed and called Defendant’s counsel for alternative dates, and counsel failed to return Plaintiff’s counsel’s calls or emails. Plaintiff re-noticed the deposition on October 11, 2022, but Defendant failed to appear for the deposition or provide an explanation as to why it did not appear.

Additionally, Plaintiff argues that good cause exists to compel Defendant’s PMK deposition and to produce documents. The requested documents are relevant as they relate to Plaintiff’s claims and defenses, and Plaintiff cannot obtain this information elsewhere. Plaintiff also seeks documents, including but not limited to, those that concern Defendant’s compliance with Labor Code, payroll procedures and records, provisions concerning rest breaks, documents about Plaintiff’s wage statements, etc.

The Court finds that good cause exists to compel Defendant’s PMK to be depose and produce documents. The claims raised here concern violations of California Labor Code. The requested documents seek information as to Defendant’s procedures concerning payroll, wage statements, overtime wages, rest breaks, etc. Additionally, Plaintiff is entitled to depose Defendant’s PMK as an officer, director, managing agent, or employee of the party, and failed to appear for the deposition and did not serve any valid objections.

Plaintiff requests monetary sanctions, pursuant to CCP § 2025.450(g)(1). CCP § 2025.450(g) states: “If a motion under subdivision (a) is granted, the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) in favor of the party who noticed the deposition and against the deponent or the party with whom the deponent is affiliated, 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.”

Here, Plaintiff requests $5,561.65 in sanctions. This is based on an hourly rate of $550 based on 5 hours for the current motion, an anticipatory 2 hours to review the opposition and 1 hour to draft a reply, as well as 2 hours for the hearing.

The Court finds that sanctions are appropriate. However, as Defendant has not filed an opposition, the additional 5 hours requested as anticipatory hours are not appropriate. Therefore, sanctions are granted in the amount of $1000, which includes the $61.65 filing fee.

Motion to Compel Deposition of Defendant’s PMK is GRANTED. Defendant’s PMK is to appear for a deposition within 30 days of service of this motion.

Request for Sanctions is GRANTED, in the amount of $1000, payable within 30 days by counsel of record.

On October 12, 2022, Plaintiff filed the current Motion to Deem RFAs Admitted (Set One.)

On October 24, 2022, Plaintiff filed the current motion to Compel Deposition of Defendant’s Employee. On February 9, 2023, Plaintiff filed a Notice of Non-Receipt of Opposition. As of February 14, 2023, no Opposition has been filed.

On October 25, 2022, Plaintiff filed a motion to Compel Deposition of Defendant’s Person Most Knowledge and Production of Documents.

A party’s motion to compel the deposition of another party must comply with the requirements of Code of Civil Procedure Section 2025.450(b). Specifically,

Here, Plaintiff served the Defendant with the Notice of Deposition as to employee Don Jorge on August 26, 2022, with the set date for the deposition of September 27, 2022. The parties spoke over the phone about stipulating to a trial continuance and Defendant’s counsel indicated his unavailability for depositions. Plaintiff’s counsel requested from Defendant’s counsel alternative dates for the deposition, but Defendant’s counsel failed to respond to emails or phone calls, and failed to respond to a second Notice of Deposition set for October 11, 2022.

Defendant moves to have the Court compel Defendant to produce the requested employee and produce documents.

The Court finds that Defendant’s employee Don Jorge can be compelled to be deposed. Under CCP § 2025.450(a) an employee of the party may be deposed. Thus, when Defendant failed to provide objections and failed to appear for the deposition, Plaintiff was entitled to file the current motion.

Here, Plaintiff requests $3,911.65.[1] This is based on an hourly rate of $550 based on 2 hours for the current motion, an anticipatory 2 hours to review the opposition and 1 hour to draft a reply, as well as 2 hours for the hearing. The Court finds that sanctions are appropriate. However, as Defendant has not filed an opposition, the additional 5 hours requested as anticipatory hours are not appropriate. Therefore, sanctions are granted in the amount of $1,000.

Motion to Compel Defendant’s Employee Don Jorge is GRANTED. Defendant’s employee is to appear for a deposition within 30 days of service of this motion.

Request for Sanctions is GRANTED, in the amount of $1,000.00, payable within 30 days by counsel of record.

[1] The Court notes that the Declaration of Mae-Elaine Q. Delos Santos states that the requested amount is $5,125.00, but then states that the total amount is $3,911.65. (Dec. Santos ¶ 16.)