Judge: William D. Claster, Case: 20-01151624, Date: 2023-07-14 Tentative Ruling

Plaintiff Polito Montano's Notice of Motion and Motion to Compel Further Responses to Specially Prepared Interrogatories, Sets One and Two and Request Imposing Monetary Sanctions Against Defendant King Van and Storage, Inc. and Its Counsel in the Amount of $2,543.00  ROA 189

Plaintiff Polito Montano moves to compel further responses to special interrogatories (SIs). He also seeks sanctions against defendant King Van & Storage, Inc. and its counsel. As discussed below, the motion is GRANTED as to special interrogatories 2-11 and 14 and otherwise DENIED. Plaintiff’s request for sanctions is DENIED.

GROUNDS FOR RULING

I.            SIs 1, 23-24, 26

KVS’s responses to 1, 23-24, and 26 all close by saying that KVS has no aggrieved employees. This would ordinarily be an improper response, but Plaintiff’s definition of “aggrieved employees” isn’t along the ordinary lines of “all non-exempt employees.” Per the instructions of SIs, Set One (LaCour Decl., Ex. A), “ ‘AGGRIEVED EMPLOYEE’ and/or ‘AGGRIEVED EMPLOYEES’ refers to any person that is currently or was employed by DEFENDANT and against whom one or more of DEFENDANT’s alleged labor code violations was committed.” That is, “aggrieved employee” is defined in terms of the underlying merits rather than objective, non-merits-based criteria.

KVS, of course, takes the position that it hasn’t committed any Labor Code violations in the first place. As a result, “we have no aggrieved employees” is responsive to the questions as written. No further response is required.

Nor does it matter that SIs 23-24 and 26 seek facts and documents supporting KVS’s denial of liability. The interrogatories speak of a denial of liability to the aggrieved employees. Since KVS states there are no aggrieved employees as defined, there is no need to identify facts or documents supporting a lack of liability to what KVS states under oath is a non-existent group.

II.          SIs 2-3

KVS’s responses to SIs 2-3 do not include the “no aggrieved employees” statement. Instead, KVS seizes on the interrogatories’ reference to “putative aggrieved employees.” As the Court understands KVS’s responses, it interprets “putative employees” to mean “contractors KVS pays by 1099 who are putatively employees.” Because KVS doesn’t pay any individuals on a 1099 basis, it asserts it has no putative employees, and thus no putative aggrieved employees.

The Court finds this too strained a construction. In wage-and-hour litigation, the parties regularly speak of a “putative class,” i.e., the class as alleged, rather than a class as certified. The same is true of “putative aggrieved employees.” This phrase refers to the persons who are allegedly aggrieved employees, as opposed to persons who have been determined to be aggrieved employees. KVS is therefore ordered to provide a further response to these interrogatories.

III.       SIs 4-9

These interrogatories seek the identity of a PMK regarding various policies pertaining to the aggrieved employees. KVS states that its head of human resources or chief financial advisory would be the PMK, but it does not identify that person or persons by name and address as required by the interrogatories’ definition of “identify” with respect to a person. KVS is therefore ordered to provide a further response that states the name and address of the responsive person or persons.

IV.         SIs 10-11, 14

SI 10 seeks the identity of persons who processed or reviewed pay records for aggrieved employees. SI 11 seeks the identity of the PMK regarding compensation of aggrieved employees. SI 14 seeks all facts regarding KVS’s contention that it paid aggrieved employees the minimum wage. For all three SIs, KVS responds by saying it doesn’t have aggrieved employees “in that it had no employees who were paid through the use of a 1099.”

Unlike SIs 1, 23-24, and 26, the additional qualifier about the use of a 1099 makes this response improper. The Court has reviewed the operative FAC, and it has found no allegations regarding the use of 1099s, misclassification of employees as contractors, etc. Since the definition of aggrieved employees depends on the Labor Code violations alleged, KVS cannot deny the existence of aggrieved employees by relying on an allegation not made in the FAC. KVS is therefore ordered to provide a further response to these interrogatories.

V.           SIs 36, 46

SI 36 asks KVS to identify what constitutes a King Relocation uniform, and SI 46 asks for the identity of the person who pays for uniforms. In both cases, KVS’s response is that it doesn’t have a uniform policy, though it does buy shirts that employees can choose to wear.

These interrogatories are based on persons in “King Relocation” shirts that Plaintiff’s counsel LaCour saw outside of his office. Per his declaration, he saw a group of movers in “King Relocation” shirts moving the contents of a J. Crew store in Pasadena. Plaintiff understandably wants to know more about those shirts, because he says that he wore such a shirt while working despite KVS’s claim that it didn’t employ him.

In the separate statement, and based on meet-and-confer correspondence, Plaintiff argues that “uniform” should be read to include both mandatory uniforms and clothing offered by an employer that an employee has the option to wear. The Court disagrees. In the wage-and-hour context, “uniforms” generally refers to clothing the employer requires the employee to wear, whether purchased by the employer or the employee. KVS states under oath that it has no uniform policy. As a result, it has no uniforms. This is a sufficiently complete response, and no further response is required. If Plaintiff wants to know more about the optional shirts, he may propound additional interrogatories.

VI.         SIs 51, 54-55

SI 51 asks whether “independent contractors doing work for YOU have their own insurances.” KVS responds that if “independent contractors” means persons it hires and pays by 1099, it says there are on such persons. If “independent contractors” means third-party companies retained by KVS, KVS has no idea what those companies’ insurance policies are. This is a sufficiently complete response. 

SI 54 asks whether KVS maintains worker’s compensation insurance for “King Relocation affiliated individuals.” KVS responds that it “does not know what you are referring to when you use the terms King Relocation affiliated persons.” Is someone who hires KVS for a home move an “affiliated individual”? After all, that person is an individual who has a contractual relationship with KVS, which is a sort of affiliation. Plaintiff’s meet-and-confer correspondence, separate statement, and moving papers all omit any discussion of what “affiliated individuals” means. This objection is sustained, and no further response will be required.

SI 55 asks KVS to identify all contact information for any carriers identified in response to SI 54. Since no further response is required for SI 54, none is required for SI 55.

VII.      Sanctions

To the extent Plaintiff has succeeded on the underlying merits, the Court exercises its discretion to find that KVS was substantially justified in its conduct. In particular, Plaintiff’s non-standard definition of “aggrieved employees” introduced considerable uncertainty into what are usually straightforward wage-and-hour discovery requests. Plaintiff’s request for sanctions is therefore denied.