Judge: Yolanda Orozco, Case: 21STCV25741, Date: 2023-01-18 Tentative Ruling
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Case Number: 21STCV25741 Hearing Date: January 18, 2023 Dept: 31
MOTION TO COMPEL DISCOVERY
TENTATIVE RULING
plaintiff’s Motion to Compel is DENIED.
Background
On July 13, 2021,
Plaintiff initiated the present action by filing a Complaint against Netflix,
and two (2) of her supervisors, David B. McLean and Josephine Choy
(collectively, “Defendants”).
The operative
First Amended Complaint asserts causes of action for:
1)
Gender Discrimination in Violation of Government Code
§12940(a);
2)
Race Discrimination in Violation of Government Code §
12940(a);
3)
Harassment in Violation of Government Code §§ 12923 and
12940(j);
4)
Violation of Government Code § 12940(k);
5)
Violation of Government Code § 12940(h);
6)
Retaliation in Violation of Labor Code § 1102.5;
7)
Violation of Labor Code §§ 1197.5, 1194.5;
8)
Wrongful Termination in Violation of Public Policy;
9)
Defamation; and
10)
Intentional Infliction of Emotional Distress (IIED).
On September 22,
2023, Plaintiff filed a Motion to Compel Discovery.
Defendant filed
opposing papers on January 04, 2023.
Plaintiff filed a
reply on January 11, 2023.
Legal Standard
Where a party fails to serve timely
responses to discovery requests, the court may make an order compelling
responses. (Code Civ. Proc., §§ 2030.290, 2031.300; Healthcare
Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148
Cal.App.4th 390, 403.) A party that fails to serve timely responses
waives any objections to the request, including ones based on privilege or the
protection of attorney work product. (Code Civ. Proc., §§ 2030.290, subd. (a), 2031.300, subd. (a).) Unlike a motion to compel further responses, a motion to
compel responses is not subject to a 45-day time limit and the propounding
party has no meet and confer obligations.¿ (Sinaiko Healthcare Consulting, Inc. v. Pac. Healthcare
Consultants (2007) 148 Cal.App.4th 390, 404.)¿¿
¿
¿If a propounding party moves for and obtains a court order
compelling a response, the court shall impose monetary sanctions against the
party failing to timely respond to interrogatories and demands for inspection
unless that party acted with substantial justification or the sanction would otherwise be unjust. (Code Civ.
Proc., §§ 2030.010, 2030.290, 2031.300, 2033.28;¿Sinaiko¿Healthcare
Consulting, Inc., supra, 148 Cal.App.4th at 404.)¿
Request for Judicial Notice
Discussion
Plaintiff seeks
an Order compelling Defendants Netflix, Inc. (“Netflix”); David B. McLean a/k/a
Ben McLean (“McLean”); and Josephine Choy (“Choy’) (collectively “Defendants”)
to respond to Plaintiff’s Second Request for Production on Documents.
Specifically,
Plaintiff wants an order compelling Defendants to search for and produce
responsive electronically stored information (“ESI”) utilizing the search terms
and custodians propounded by Plaintiff and entering Plaintiff’s Proposes
Protective Order and other relief the Court deems just and proper.
Plaintiff asserts that Defendants have not produced a single document responsive to Plaintiff’s Document Request. However, by Plaintiff’s own admission, Defendants did respond to Plaintiff’s Second Request for Production of Documents with objections and responses to the Documents request. (Ostrowski Decl. ¶ 7; Lawson Decl. ¶ 6.)
A motion to compel initial discovery is appropriate when no answer or objections are filed. (See Vidal Sassoon, Inc. v. Superior Court (1983) 147 Cal.App.3d 681, 684.) Since Defendants responded to Plaintiff’s propounded discovery with responses and objections, Plaintiff’s Motion is a motion seeking to compel further responses. It is immaterial that no responsive documents were produced. This Court’s Standing Order requires that an Informal Discovery Conference (“IDC”) be held prior to the hearing on Plaintiff’s motion to compel further. The IDC is not scheduled to be heard until February 06, 2023.
Moreover,
Plaintiff’s notice of sanctions is also deficient.
“A request for a sanction shall, in the notice of motion, identify
every person, party, and attorney against whom the sanction is sought, and
specify the type of sanction sought. The notice of motion shall be supported by a memorandum of points and authorities and accompanied by a declaration setting forth facts supporting
the amount of any monetary sanction sought.”
(Code Civ. Proc., § 2023.040.)
Here,
Plaintiff’s Notice of Motion does not specify against whom the sanctions are
sought or the amount of sanctions sought.
Since the IDC may resolve some of the discovery disputes at issue in this Motion, the Motion is DENIED. Plaintiff is ordered to refile the Motion after the IDC conference is held so that the moving papers accurately reflect the Parties remaining discovery disputes. The motion must be filed as a motion to compel further written responses, accompanied by a separate statement.
Conclusion
plaintiff’s Motion to Compel is DENIED.
Plaintiff is to give notice.