Hearing Exparte Application

Cal. Super. - 6th Dist.July 18, 2017

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Larry W. Lee, Esq. SBN 228175 DIVERSITY LAW GROUP, P.C. 515 S. Figueroa St., Suite 1250 Los Angeles, CA 90071 Telephone: (213) 488-6555 Facsimile: (213) 488-6554 Attorneys for Plaintiff (Additional counsel on following page) SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA SHAILENDRA SINGH, as an individual and on behalf of all others similarly situated, Plaintiffs, vs. INTER-CON SECURITY SYSTEMS, INC., a Corporation, and DOES 1 through 50, inclusive, Defendants. Case No. 17CV313202 Assigned for All Purposes to Honorable Brian C. Walsh in Department 1 PLAINTIFF'S EX PARTE APPLICATION FOR AN ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, CONTINUING THE HEARING ON DEFENDANT'S MOTION TO PERMIT DISCOVERY PURSUANT TO CALIFORNIA CODE OF CIVIL PROCEDURE § 437c(h); MEMORANDUM OF POINTS AND AUTHORITIES; AND DECLARATION OF LARRY W. LEE IN SUPPORT Date: July 6, 2018 Time: 2:00 p.m. Dept.: 1 PLAINTIFF'S EX PARTE APPLICATION FOR AN ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, CONTINUING THE HEARING ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT TO PERMIT DISCOVERY PURSUANT TO CCP 437c(h) Electronically Filed by Superior Court of CA, County of Santa Clara, on 7/5/2018 10:23 AM Reviewed By: R. Walker Case #17CV313202 Envelope: 1691213 17CV313202 Santa Clara - Civil 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dennis S. Hyun (State Bar No. 224240) HYUN LEGAL, APC 515 S. Figueroa St., Suite 1250 Los Angeles, CA 90071 (213) 488-6555 (213) 488-6554 facsimile Edward W. Choi, State BarNo. 211334 Paul M. Yi, Esq. SBN 207867 LAW OFFICES OF CHOI & ASSOCIATES, APLC 515 S. Figueroa St. Suite 1250 Los Angeles, CA 90010 Telephone: (213) 381-1515 Facsimile: (213) 465-4885 William L. Marder, Esq. (SSN 170131) POLARIS LAW GROUP 501 San Benito Street, Suite 200 Hollister, CA 95023 Telephone: (831) 531-4214 Facsimile: (831) 634-03 3 3 Attorneys for Plaintiff 2 PLAINTIFF'S EX PARTE APPLICATION FOR AN ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, CONTINUING THE HEARING ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT TO PERMIT DISCOVERY PURSUANT TO CCP 437c(h) 1 TO DEFENDANT AND ITS COUNSEL OF RECORD 2 PLEASE TAKE NOTICE that on July 6, 2018, at 2:00p.m., or as soon thereafter as the 3 matter may be heard in Department 1 of the Superior Court of the State of California, County of 4 Santa Clara, located at 191 N. First St., San Jose, California 95113, before the Hon. Brian C. 5 Walsh, Judge presiding, Plaintiff Shailendra Singh ("Plaintiff') will and hereby does apply ex 6 parte for an Order denying Defendant Inter-Con Security Systems, Inc.'s ("Defendant") Motion 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 for Summary Judgment, currently scheduled for 9:00a.m. on August 31,2018, or, in the alternative, for an Order continuing the hearing on Defendant's Motion for a period of 180 days to permit Plaintiff to conduct discovery to oppose Defendant's Motion for Summary Judgment and/or an Order denying Defendant's Motion for Summary Judgment, pursuant to California Code of Civil Procedure§ 437c(h), which states as follows: If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication, or both, that facts essential to justify opposition may exist but cannot, for reasons stated, be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just. The application to continue the motion to obtain necessary discovery may also be made by ex parte motion at any time on or before the date the opposition response to the motion is due. (Emphasis added). Good cause exists for the Court to deny Defendant's Motion for Summary Judgment. As this Court knows, the Parties' counsel appeared at the Informal Discovery Conference ("IDC") before this Court on February 20, 2018. This Court informed Defendant's counsel that it would follow Williams v. Superior Court, 3 Cal. 5th 531, 550 (20 17), and likely order Defendant to respond. Further, to the extent that Defendant filed a motion for summary judgment, this Court noted that it would also likely grant a request by Plaintiff to conduct discovery pursuant to California Code of Civil Procedure Section 437c(h). Nevertheless, Defendant refused to supplement and instead forced Plaintiff to file Motions to Compel Further Responses. Defendant also filed a Motion for a Protective Order in a further attempt to block Plaintiffs right to conduct discovery. The Court continued the hearings on these motions from June 22,2018, to August 10, 2018, which does not permit Plaintiff enough time to obtain a ruling in his favor from this Court, 3 PLAINTIFF'S EX PARTE APPLICATION FOR AN ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, CONTINUING THE HEARING ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT TO PERMIT DISCOVERY PURSUANT TO CCP 437c(h) 1 obtain the further discovery responses and documents, and then prepare his opposition by the 2 current due date of August 17, 2018. As part of Defendant's grounds for moving for summary 3 judgment, it argues that it is not a "temporary service employer" as defined by Labor Code § 4 201.3. Plaintiffs discovery to which Defendant has refused to respond specifically seeks 5 discovery as to Defendant's employer status as a "temporary services employer" as defined by 6 Labor Code§ 201.3. Specifically, Plaintiffs Requests Nos. 9, 11-15 and 19-23, seek documents 7 relating to the factors for temporary employer status. Again, Defendant has refused to respond, 8 which has forced Plaintiff to file discovery motions and, more importantly, to be unable to 9 submit evidence to oppose Defendant's Motion for Summary Judgment. Thus, pursuant to 10 Section 437c(h), this Court should deny Defendant's Motion for Summary Judgment based on 11 Defendant's refusal to participate in discovery notwithstanding being advised by this Court that 12 it would order Defendant to respond to Plaintiffs discovery. In the alternative, the Court should 13 at a minimum continue the hearing on Defendant's Motion for Summary Judgment by a period 14 of 180 days to permit Plaintiff to obtain a ruling on his discovery motions currently set for 15 August 10,2018, obtain the discovery responses and documents, depose Defendant's persons 16 most knowledgeable, and then fully brief the issues presented in Defendant's Motion for 17 Summary Judgment. 18 As set forth in the Declaration of Larry W. Lee attached hereto, proper notice of this 19 Application was given to counsel for Defendant. (Declaration of Larry W. Lee ("Lee Decl.") ~ 20 10, Exhibit "B"). Furthermore, Plaintiffs counsel attempted to meet and confer with 21 Defendant's counsel to resolve this issue short of this ex parte, but Defendant's counsel refused 22 to meet and confer. Thus, Plaintiffs counsel assumes that Defendant will oppose this 23 Application. (Lee Decl. ~ 1 0). 24 This Application is based upon this Notice of Ex Parte Application, the attached 25 Memorandum ofPoints and Authorities, the attached Declaration of Larry W. Lee and exhibits 26 attached thereto, the files and records on file herein, and upon such other evidence as may be 27 considered by the Court. 28 4 PLAINTIFF'S EX PARTE APPLICATION FOR AN ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, CONTINUING THE HEARING ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT TO PERMIT DISCOVERY PURSUANT TO CCP 437c(h) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DATED: July ~018 DIVERSITY LAW GROUP, P.C. 5 PLAINTIFF'S EX PARTE APPLICATION FOR AN ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, CONTINUING THE HEARING ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT TO PERMIT DISCOVERY PURSUANT TO CCP 437c(h) 1 2 I. MEMORANDUM OF POINTS AND AUTHORITIES INTRODUCTION 3 This Court advised Defendant Inter-Con Security Systems, Inc. ("Defendant") at the 4 Informal Discovery Conference (the "IDC") held on February 20, 2018, that the Court would 5 grant a continuance of the Motion for Summary Judgment hearing to permit Plaintiff Shailendra 6 Singh ("Plaintiff') to conduct discovery in the event that Defendant filed a motion for summary 7 judgment. 8 What has Defendant done? Defendant has refused to respond to Plaintiffs discovery 9 notwithstanding this Court advising Defendant that the Court would likely order further 10 responses pursuant to Williams v. Superior Court, 3 Cal. 5th 531, 550 (2017). Thus, Plaintiff 11 was forced to file Motions to Compel Further Responses to His Requests for Production of 12 Documents and Special Interrogatories. Plaintiffs discovery sought documents specifically 13 relating to the elements of Labor Code§ 201.3. Instead of providing the discovery responses an 14 documents as advised by this Court, Defendant stonewalled Plaintiff and instead filed its Motion 15 for Summary Judgment, which seeks to adjudicate Labor Code § 201.3 's "temporary services 16 employer" element. As briefed in Plaintiffs Motion to Compel, Plaintiffs Requests for 17 Production Nos. 9, 11-15 and 19-23, seek documents relating to the factors to qualify as a 18 "temporary services employer." Nevertheless, Defendant went ahead and filed its Motion for 19 Summary Judgment. The Court continued the hearings on Plaintiffs discovery motions from 20 June 22, 2018, to August 10, 2018, which does not permit Plaintiff enough time to obtain a 21 ruling in his favor from this Court, obtain the further discovery responses and documents, depose 22 Defendant's persons most knowledgeable, and then prepare his opposition to the Motion for 23 Summary Judgment by the current due date of August 17, 2018. 24 Accordingly, Plaintiff respectfully requests that the Court' grant Plaintiffs Application 25 and deny Defendant's Motion for Summary Judgment, with prejudice, given Defendant's 26 gamesmanship with respect to its discovery obligations. Defendant was advised to provide 27 responses and documents by this Court, but Defendant refused to do so. 28 /// 6 PLAINTIFF'S EX PARTE APPLICATION FOR AN ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, CONTINUING THE HEARING ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT TO PERMIT DISCOVERY PURSUANT TO CCP 437c(h) 1 In the alternative, Plaintiff respectfully requests that the Court continue the hearing on 2 Defendant's Motion for Summary Judgment and all briefing deadlines for 180 days so that 3 Plaintiff can obtain the further written responses and documents and then complete the 4 deposition of Defendant's persons most knowledgeable. After the completion of such discovery, 5 Plaintiff will be in a position to oppose Defendant's Motion for Summary Judgment. 6 II. 7 FACTUALANDPROCEDURALBACKGROUND A. Factual Allegations 8 This is a PAGA action for violation of Labor Code§ 201.3. Section 201.3 provides that 9 temporary service employees must be paid on a weekly basis. Further, Section 201.3 was 10 amended to read as follows: 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 [I]f an employee of a temporary services employer in the security services industry is a security guard who is registered pursuant to Chapter 11.5 (commencing with Section 7580) of Division 3 of the Business and Professions Code, is employed by a private patrol operator licensed pursuant to that chapter, and is assigned to work for a client, that employee's wages are due and payable no less frequently than weekly, regardless of when the assignment ends, and wages for work performed during any workweek, as defined under Section 500, shall be due and payable not later than the regular payday of the following workweek. Labor Code§ 201.3(b)(1)(B) (emphasis added). Plaintiff alleges that Defendant is subject to this provision as Defendant is a security guard company that assigns security guards to work at its clients' facilities. Thus, in order for Plaintiff to prevail, he will need to establish that Defendant is (1) a temporary services employer; (2) that Defendant is in the security services industry and is registered pursuant to Chapter 11.5 (commencing with Section 7580) of Division 3 of the . . ' Business and Professions Code; and (3) that Defendant pays its security guards on a bi-weekly (or some other non-weekly basis). The discovery Plaintiff seeks information directly to those items. In Defendant's Motion for Summary Judgment, Defendant now argues that it is not a temporary services employer, which is defined by Labor Code§ 201.3 as follows: 7 PLAINTIFF'S EX PARTE APPLICATION FOR AN ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, CONTINUING THE HEARING ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT TO PERMIT DISCOVERY PURSUANT TO CCP 437c(h) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (1) "Temporary services employer" means an employing unit that contracts with clients or customers to supply workers to perform services for the clients or customers and that performs all of the following functions: (A) Negotiates with clients and customers for matters such as the time and place where the services are to be provided, the type of work, the working conditions, and the quality and price of the services. (B) Determines assignments or reassignments of workers, even if workers retain the right to refuse specific assignments. (C) Retains the authority to assign or reassign a worker to another client or customer when the worker is determined unacceptable by a specific client or customer. (D) Assigns or reassigns workers to perform services for clients or customers. (E) Sets the rate of pay of workers, whether or not through negotiation. (F) Pays workers from its own account or accounts. (G) Retains the right to hire and terminate workers. Labor Code§ 201.3(a)(l)(A)-(G). B. Procedural History On November 6, 2017, Plaintiff served his First Set of Special Interrogatories and Requests for Production of Documents. (Declaration of Larry W. Lee ("Lee Decl.") 'lf3). On December 5, 2017, Defendant served its responses. (Lee Decl. 'lf4). Plaintiffs counsel conducted a telephonic meet and confer with Defendant's counsel on January 18, 2018. (Lee Decl. 'lf5). Given Defendant's failure to respond, Plaintiff reserved an IDC for February 6, 2018, which was continued to February 20,2018. (Lee Decl. 'lf6). At the IDC on February 20,2018, this Court informed Defendant's counsel that it would follow Williams and likely order Defendant to respond. (!d.) Further, to the extent that Defendant filed a motion for summary judgment, this Court noted that it would also likely grant a request by Plaintiff to conduct discovery pursuant to California Code of Civil Procedure Section 437c(h). (!d.) On June 12, 2018, Defendant filed and served its Motion for Summary Judgment. One o 8 PLAINTIFF'S EX PARTE APPLICATION FOR AN ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, CONTINUING THE HEARING ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT TO PERMIT DISCOVERY PURSUANT TO CCP 437c(h) 1 Defendant's central arguments is that it is not a temporary services employer under Labor Code 2 § 201.3. 3 It should be noted that Plaintiff's discovery, i.e., Requests for Production Nos. 9, 11-15 4 and 19-23, seek documents relating to the factors to qualify as a "temporary services employer." 5 (Lee Decl. Exhibit A). Requests Nos. 9 and 11-14 seek contract documents between Defendant 6 and its clients, which will undoubtedly contain terms relating to "the time and place where the 7 services are to be provided, the type of work, the working conditions, and the quality and price o 8 the services, and who retains control over the workers, such as hiring and firing. Labor Code § 9 201.3(a)(l)(A)-(G). (Lee Decl. ~ 7). Requests Nos. 15, and 19-23, seek documents relating to 10 which entity controls these workers, Defendant or its clients. (Jd) To the extent that Defendant 11 controls said workers, then Defendant will qualify as a temporary services employer. (Jd) 12 III. A CONTINUANCE OF THE SUMMARY JUDGMENT HEARING AND 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 BRIEFING DEADLINES ARE WARRANTED TO PERMIT PLAINTIFF THE RIGHT TO CONDUCT DISCOVERY California Code of Civil Procedure § 437c(h) states as follows: If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication, or both, that facts essential to justify opposition may exist but cannot, for reasons stated, be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just. The application to continue the motion to obtain necessary discovery may also be made by ex parte motion at any time on or before the date the opposition response to the motion is due. (Emphasis added). "If it appears from the affidavits submitted in opposition that facts essential to justify the opposition exist but cannot, for reason stated, then be presented, the court shall deny the motion, . . or order a continuance to permit discovery to be had." Bah! v. Bank of America 90 Cal. App. 4th 389, 395 (2001) (emphasis added); see also Dee v. Vintage Petroleum, Inc., 106 Cal. App. 4th 30, 34-35 (2003), as modified (Feb. 27, 2003), as modified on denial ofreh'g (Mar. 5, 2003) ("Where the opposing party submits an adequate affidavit showing that essential facts may exist 9 PLAINTIFF'S EX PARTE APPLICATION FOR AN ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, CONTINUING THE HEARING ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT TO PERMIT DISCOVERY PURSUANT TO CCP 437c(h) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 but cannot be presented timely, the court must either deny summary judgment or grant a continuance.") (Emphasis added). Disposition on the merits is favored over dismissal for failure to proceed with reasonable diligence. Bahl, 90 Cal. App. 4th at 399. The strong public policy favoring disposition on the merits outweighs the competing policy favoring judicial efficiency. !d. The Court of Appeal's decision in People v. $4,503 United States Currency, 49 Cal. App. 4th 1743, 1748 (1996), illustrates this principle. There, the defendant refused to cooperate with discovery. !d. As such, the trial court denied the defendant's motion for summary judgment. !d. The Court of Appeal affirmed: Abarca's failure to cooperate with discovery deprived the state of an opportunity to prove its case. Under the terms of section 437c of the Code of Civil Procedure, the trial court could not properly grant the motion for summary judgment. We must evaluate the validity of the order denying summary judgment on the basis of the state of the record as it existed at the time that the trial court considered the motion. [Citations]. Thus, at the time the motion was pending before it, the trial court properly denied the motion for summary judgment at that time in order to allow further discovery to be conducted. !d. at 17 48 (citations omitted). As stated herein, Defendant has stonewalled Plaintiffs attempts to obtain discovery relating to the temporary services employer element of Plaintiffs claim for violation of Labor Code§ 201.3. As set forth in Section 201.3: (1) "Temporary services employer" means an employing unit that contracts with clients or customers to supply workers to perform services for the clients or customers and that performs all of the following functions: (A) Negotiates with clients and customers for matters such as the time and place where the services are to be provided, the type of wor~, the working conditions, and the quality and price of the services. (B) Determines assignments or reassignments of workers, even if workers retain the right to refuse specific assignments. (C) Retains the authority to assign or reassign a worker to another client or customer when the worker is determined unacceptable by a specific client or customer. 10 PLAINTIFF'S EX PARTE APPLICATION FOR AN ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, CONTINUING THE HEARING ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT TO PERMIT DISCOVERY PURSUANT TO CCP 437c(h) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (D) Assigns or reassigns workers to perform services for clients or customers. (E) Sets the rate of pay of workers, whether or not through negotiation. (F) Pays workers from its own account or accounts. (G) Retains the right to hire and terminate workers. Labor Code§ 201.3(a)(1)(A)-(G). Plaintiffs discovery, which is now the subject of Plaintiffs Motion to Compel, seeks documents relating to these elements. Requests for Production Nos. 9, 11-15 and 19-23, seek documents relating to the factors to qualify as a "temporary service employer." (Lee Decl. Exhibit A). Requests Nos. 9 and 11-14 seek contract documents between Defendant and its clients, which will undoubtedly contain terms relating to "the time and place where the services are to be provided, the type of work, the working conditions, and the quality and price of the services, and who retains control over the workers, such as hiring and firing. Labor Code § 201.3(a)(1)(A)-(G). (Lee Decl. ~ 7). Requests Nos. 15, and 19-23, seek documents relating to which entity controls these workers, Defendant or its clients. (!d.) To the extent that Defendant controls said workers, then Defendant may qualify as a temporary services employer. (!d.) However, the Court continued the hearings on Plaintiffs discovery motions from June 22, 2018, to August 10, 2018, which does not permit Plaintiff enough time to obtain a ruling in his favor from this Court, obtain the further discovery responses and documents, and then prepare his opposition by the current due date of August 17, 2018. Given that Defendant has stonewalled Plaintiff, Defendant's Motion for Summary Judgment should be denied pursuant to People, 49 Cal. App. 4th at 1748. At a minimum, Plaintiff respectfully requests that the Court continue the hearing on Defendant's Motion for Summary Judgment and all briefing deadlines for 180 days so that Plaintiff can obtain the further written responses and documents and then complete the deposition of Defendant's persons most knowledgeable. After the completion of such discovery, Plaintiff will be in a position to oppose Defendant's Motion for Summary Judgment. Ill 11 PLAINTIFF'S EX PARTE APPLICATION FOR AN ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, CONTINUING THE HEARING ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT TO PERMIT DISCOVERY PURSUANT TO CCP 437c(h) 1 IV. CONCLUSION 2 For the reasons stated above, Plaintiffs Ex Parte Application should be granted and the 3 Court should deny Defendant's Motion for Summary Judgment. At the very least, Plaintiff 4 respectfully requests that the Court continue the hearing on Defendant's Motion for Summary 5 Judgment and all briefing deadlines for 180 days so that Plaintiff can obtain the further written 6 responses and documents and then complete the deposition of Defendant's persons most 7 knowledgeable. After the completion of such discovery, Plaintiff will be in a position to oppose 8 Defendant's Motion for Summary Judgment. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DATED: July 5zo18 DIVERSITY LAW GROUP, P.C. By:~~ Larry W. Lee Attorneys for PLAINTIFF 12 PLAINTIFF'S EX PARTE APPLICATION FOR AN ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, CONTINUING THE HEARING ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT TO PERMIT DISCOVERY PURSUANT TO CCP 437c(h) 1 DECLARATION OF LARRY W. LEE IN SUPPORT OF EX PARTE APPLICATION 2 I, LARRY W. LEE, hereby declare and state as follows: 3 1. I am an attorney at law duly admitted to practice before all courts in the State of 4 California and am a member of the law firm of the Diversity Law Group, APC, one of the 5 attorneys of record for Plaintiff Shailendra Singh ("Plaintiff'), in the above entitled action. 6 2. I have personal knowledge of the matters set forth herein, and if called upon as a 7 witness to testify thereto, I could and would competently do so. 8 3. On November 6, 2017, Plaintiff served his First Set of Special Interrogatories and 9 Requests for Production of Documents. 10 11 4. 5. On December 5, 2017, Defendant served its responses. Plaintiffs counsel conducted a telephonic meet and confer with Defendant's 12 counsel on January 18, 2018. 13 6. Given Defendant's failure to respond, Plaintiff reserved an Informal Discovery 14 Conference ("IDC") for February 6, 2018, which was continued to February 20,2018. At the 15 IDC on February 20, 2018, this Court informed Defendant's counsel that it would follow 16 Williams and likely order Defendant to respond. Further, to the extent that Defendant filed a 17 motion for summary judgment, this Court noted that it would also likely grant a request by 18 Plaintiff to conduct discovery pursuant to California Code of Civil Procedure Section 437c(h). 19 (!d) 20 7. On June 12,2018, Defendant filed and served its Motion for Summary Judgment. 21 One of Defendant's central arguments is that it is not a temporary services employer under Labor 22 Code§ 201.3. 23 8. It should be noted that Plaintiffs discovery, i.e., Requests for Production Nos. 9, 24 11-15 and 19-23, seek documents relating to the factors to qualify as a "temporary services 25 employer." Attached hereto as Exhibit "A" is a true and correct copy of Plaintiffs First Set of 26 Requests for Production of Documents. 27 9. As set forth in Plaintiffs Requests for Production, Requests Nos. 9 and 11-14 28 seek contract documents between Defendant and its clients, which will undoubtedly contain 13 PLAINTIFF'S EX PARTE APPLICATION FOR AN ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, CONTINUING THE HEARING ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT TO PERMIT DISCOVERY PURSUANT TO CCP 437c(h) 1 terms relating to "the time and place where the services are to be provided, the type of work, the 2 working conditions, and the quality and price of the services, and who retains control over the 3 workers, such as hiring and firing. Labor Code§ 201.3(a)(l)(A)-(G). Requests Nos. 15, and 19- 4 23, seek documents relating to which entity controls these workers, Defendant or its clients. To 5 the extent that Defendant controls said workers, then Defendant will qualify as a temporary 6 services employer. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10. Proper notice of this Application was given to counsel for Defendant. On July 1, 2018, Plaintiffs counsel sent an email to Defendant's counsel informing him that Plaintiff would be appearing ex parte at 2:00 p.m. on July 6, 2018, in this Court to seek the relief sought herein. Furthermore, Plaintiffs counsel attempted to meet and confer with Defendant's counsel to resolve this issue short of this ex parte, but Defendant's counsel refused to meet and confer. Thus, Plaintiffs counsel assumes that Defendant will oppose this Application. Attached hereto as Exhibit "B" is a true and correct copy of my email to Defendant's counsel informing him of this ex parte application. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on July >,'2018, at Los Angeles, California. - ~~ LARRYW. LEE 14 PLAINTIFF'S EX PARTE APPLICATION FOR AN ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, CONTINUING THE HEARING ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT TO PERMIT DISCOVERY PURSUANT TO CCP 437c(h) EXHIBIT A I I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Larry W. Lee, Esq. SBN 228175 DIVERSITY LAW GROUP, P.C. 515 S. Figueroa St., Suite 1250 Los Angeles, CA 90071 Telephone: (213) 488-6555 Facsimile: (213) 488-6554 Attorneys for Plaintiff (Additional counsel on following page) SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA SHAILENDRA SINGH, as an individual and on behalf of all others similarly situated, Plaintiffs, vs. INTER-CON SECURITY SYSTEMS, INC., a Corporation, and DOES 1 through 50, inclusive, Defendants. Case No. 17CV313202 Assignedfor All Purposes to Honorable Brian C. Walsh in Department 1 PLAINTIFF'S FIRST SET OF REQUESTS FOR PRODUCTION OF DOCUMENTS TO DEFENDANT PROPOUNDING PARTY: PLAINTIFF SHAILENDRA SINGH RESPONDING PARTY: SET NUMBER: DEFENDANT INTER-CON SECURITY SYSTEMS, INC. ONE PLAINTIFF'S FIRST SET OF REQUESTS FOR PRODUCTION OF DOCUMENTS TO DEFENDANT Dennis S. Hyun (State Bar No. 224240) HYUN LEGAL, APC 2 515 S. Figueroa St., Suite 1250 3 Los Angeles, CA 90071 (213) 488-6555 4 (213) 488-6554 facsimile 5 Edward W. Choi, State Bar No. 211334 6 LAW OFFICES OF CHOI & ASSOCIATES, APLC 515 S. Figueroa St. Suite 1250 7 Los Angeles, CA 9001 0 Telephone: (213) 381-1515 8 Facsimile: (213) 465-4885 9 William L. Marder, Esq. (SSN 170131) 10 POLARIS LAW GROUP 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 501 San Benito Street, Suite 200 Hollister, CA 95023 Telephone: (831) 531-4214 Facsimile: (831) 634-0333 2 PLAINTIFF'S FIRST SET OF REQUESTS FOR PRODUCTION OF DOCUMENTS TO DEFENDANT TO DEFENDANT AND ITS COUNSEL OF RECORD: 2 PLEASE TAKE NOTICE that Defendant Inter-Con Security Systems, Inc. ("Defendant") 3 is hereby requested, pursuant to Section 2031.010, et seq., of the California Code of Civil 4 Procedure, to produce for inspection and copying the documents described herein below on or 5 before December 6, 2017, at Diversity Law Group, P.C., 515 S. Figueroa St., Ste. 1250, 6 California 90071, and provide written responses in compliance with the Code of Civil Procedure 7 as to each of the requests below. Defendant may comply with this Request for Production by 8 transmitting the demanded documents by mail so long as they arrive at the offices of Diversity 9 Law Group no later than the aforestated date. 10 I. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFINITIONS AND INSTRUCTIONS l. For purposes of these discovery requests, the terms "DOCUMENT" and "DOCUMENTS," as used herein, are intended to mean any "writings" or recorded material in the broadest sense defined in Section 250 of the California Evidence Code. This includes, but is not limited to, all writings of any nature whatsoever, written, typed, transcribed, translated, copied, recorded, e-mails and any other forms of electronic communication, tape recordings, video recordings, and/or pictures, photographs, digital records or visual displays, within the possession, custody or control of DEFENDANT, or of any agent, employee, representative, or other PERSON acting on DEFENDANT's behalf, or in concert with DEFENDANT, whether prepared by DEFENDANT, or by any other PERSON. Further, the terms "DOCUMENT" or "DOCUMENTS" shall specifically include, without limitation, any and all DRAFTS and/or DOCUMENTS consisting of working papers, summaries, lists or records ofhours worked, contracts, agreements, handbooks, forms, correspondence, telegrams, memoranda, reports, books, summaries or records of telephone conversations, summaries or records of conversations or interviews, diaries, forecasts, statistical statements, graphs, chmts, accounts, analytical records, minutes or records of meetings or conferences, reports, appraisals, reports or summaries of negotiations, adve1tising, telegraphs, telexes, electronic mail or other electronic 3 PLAINTIFF'S FIRST SET OF REQUESTS FOR PRODUCTION OF DOCUMENTS TO DEFENDANT 2 3 4 5 6 7 8 9 10 11 12 13 14 15 correspondence, electronic media and files, reports, summaries, handwritten notes, resolutions, minutes and agenda of meetings, conferences or the like, transcriptions of conversations, cost sheets, financial records, tape recordings, diagrams, schematic drawings, prints, slides, movies, videos, and any other pictorial representations. 2. For purposes of these discovery requests, the term "DRAFTS" means any earlier, preliminary, preparatory, or tentative version of all or part of a DOCUMENT, whether or not such draft was superseded by a later draft and whether or not the terms of the draft are the same as or different from the tenns of the final DOCUMENT. 3. For purposes of these discovery requests, "YOU," "YOUR" and "DEFENDANT" mean Defendant Inter-Con Security Systems, Inc. 4. 5. "PLAINTIFF" means and refers to Plaintiff Shailendra Singh. "COMPLAINT" refers to the Secpnd Amended Complaint filed on behalf of PLAINTIFF in the Santa Clara County Superior Court, Case No. 17CV313202. 6. "RELEVANT TIME PERIOD" shall mean at any time from July 11, 2016, 16 through the present. 17 7. For purposes of these discovery requests, "PERSON" includes, in the plural, as 18 well as the singular, a natural person, entity, firm, association, organization, partnership, trust, 19 corporation, committee, union, or public entity. 20 8. For purposes of these discovery requests, "INDIVIDUAL" includes, in the plural, 21 as well as the singular, a natural human being. 22 23 9. For purposes of these discovery requests, "COMMUNICATE" and "COMMUNICATIONS" mean and include any meeting, conference, face-to-face conversation, 24 · telephone conversation, or conference or communication used by any media, as well as any 25 26 27 28 written, taped, electronic, or recorded communication of any kind whatsoever. 10. For purposes of these discovery requests, the terms "PERTAIN TO," "PERTAINING," "RELATE TO," or "RELATING TO" shall mean referring to, evidencing, commenting on, regarding, discussing, describing, mentioning, reflecting, constituting, 4 PLAINTIFF'S FIRST SET OF REQUESTS FOR PRODUCTION OF DOCUMENTS TO DEFENDANT 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 contradicting, pertaining to, or concerning. 11. Partial Production. Whenever DEFENDANT objects to a particular demand or portion thereof, DEFENDANT must produce all DOCUMENTS called for which are not subject to that objection. Similarly, wherever a DOCUMENT is not produced in full, please state with particularity the reason or reasons it is not being produced in full, and described, to the best of DEFENDANT's knowledge, information and belief and with as much particularity as possible, those portions of the DOCUMENT which are not produced. 12. Orderly Response. Where it is reasonably practicable, please produce DOCUMENTS in such a manner as will facilitate their identification with the particular demand or category of demands to which they are responsive. 13. Construction of "And" and "Or". As used herein, the words "and" and "or" shall be construed both conjunctively and disjunctively, and each shall include the other wherever such dual construction will serve to bring within the scope of this document request any DOCUMENT which would otherwise not be brought within its scope. 14. Construction of the Singular and Plural Forms. As used herein, the singular form shall include the plural and vice versa wherever such dual construction will serve to bring within the scope of this document request any DOCUMENT which would otherwise not be brought within its scope. 15. In responding to these requests, DEFENDANT is required to produce all requested DOCUMENTS which are in DEFENDANT's possession or custody or control, or which are in the possession or custody or control of DEFENDANT's agents, accountants, employees, representatives, investigators, experts, attorneys, or anyone acting on DEFENDANT's behalf or anyone over whom DEFENDANT exercises control with respect to DOCUMENTS in that PERSON's possession, regardless of where the DOCUMENTS may be located. 16. In responding to these discovery requests, DEFENDANT is requested to respond in writing and state as to each of these discovery requests: 5 PLAINTIFF'S FIRST SET OF REQUESTS FOR PRODUCTION OF DOCUMENTS TO DEFENDANT 2 3 4 5 6 7 8 9 17. a. That there are such DOCUMENTS and whether they will be produced in full, or in part; b. c. That there are such DOCUMENTS, but DEFENDANT refuses to produce them because of a claim of privilege or privacy right, or for some other reason; or That there are no such DOCUMENTS responsive to the particular discovery request in DEFENDANT's possession, custody and/or control. If any requested DOCUMENT was, but is no longer in DEFENDANT's possession, custody and/or control, or is no longer in existence, DEFENDANT must identify the 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DOCUMENT and state whether: (i) it has been destroyed; (ii) it has been lost, misplaced or stolen; or (iii) it has never been, or is no longer in DEFENDANT's possession, custody and/or control, in which case the name and address of any PERSON known or believed to have possession, custody or control of that DOCUMENT or category of DOCUMENTS should be identified. In each such instance, DEFENDANT should explain the circumstances surrounding the disposition of the DOCUMENTS and identify all PERSONS who have knowledge of such disposition. 18. If any DOCUMENT covered by any discovery request is withheld by reason of a claim of privilege and/or privacy right, a list is to be furnished at the time the DOCUMENTS are due to be produced, identifying any such DOCUMENT for which the privilege and/or privacy right is claimed, together with the following information for such document: a. The author(s) of the DOCUMENT; b. The addressee(s), if any, and those PERSONS, if any, specified in the DOCUMENT to receive a copy thereof; c. d. e. f. All known recipients of the DOCUMENT; The sender of the DOCUMENT; The title of the DOCUMENT; Whether there are, or were indicated, blind copies of that DOCUMENT; 6 PLAINTIFF'S FIRST SET OF REQUESTS FOR PRODUCTION OF DOCUMENTS TO DEFENDANT 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 g. The date the DOCUMENT was created; h. i. J. The date on which the DOCUMENT was sent or received; The general subject-matter of the DOCUMENT; and The specific privilege(s) and/or privacy right(s) that DEFENDANT contends apply to the DOCUMENT, e.g., attorney-client privilege, attorney work product or other applicable privilege. 19. If DEFENDANT objects to production of any DOCUMENT on any other ground, such objection must be fully and specifically stated, including the grounds therefor. 20. These discovery requests require the production of DOCUMENTS either in the same form and in the same order as they are kept in their normal course, or organized and labeled to correspond with the patticular demand set forth below. If DEFENDANT chooses the former method, the DOCUMENTS are to be produced in boxes, file folders, binders or any other containers in which the DOCUMENTS are found. The titles, or other descriptions on the boxes, file folders, binders or containers are to be left intact. II. DOCUMENTS REQUIRED TO BE PRODUCED 18 REQUEST N0.1: 19 20 21 22 23 24 25 26 27 28 Any and all paychecks, remittance advices, paystubs and other DOCUMENTS YOU issued to YOUR non-exempt Security Guard/Security Officer employees in California during the RELEVANT TIME PERIOD. REQUEST NO. 2: Any and all documents that refer to forms of compensation paid to PLAINTIFF. REQUEST NO.3: PLAINTIFF's personnel file. REQUEST NO.4: Please produce all employee handbooks that applied to PLAINTIFF while he was an employee ofDEFENDANT. 7 PLAINTIFF'S FIRST SET OF REQUESTS FOR PRODUCTION OF DOCUMENTS TO DEFENDANT 2 3 4 5 6 7 8 9 REQUEST NO. 5: Please produce all DEFENDANT's employee handbooks in effect during the RELEVANT TIME PERIOD. REQUEST NO. 6: Please produce any and all DOCUMENTS that RELATE TO hours worked by PLAINTIFF while employed by DEFENDANT, including but not limited to payroll paycheck stubs, and timesheets. REQUEST NO. 7: Please produce any and all itemized wage statements for PLAINTIFF while employed by 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANT. REQUEST NO. 8: Please produce any and all DOCUMENTS that RELATE TO COMMUNICATIONS RELATING TO PLAINTIFF. REQUEST NO. 9: Please produce any and all contracts between YOU and YOUR clients with provisions of and/or relating to providing security guard services in existence, executed, and/or binding at any time during the RELEVANT TIME PERIOD for any sites and/or posts in the State of California REQUEST NO. 10: Please produce any and all DOCUMENTS identified in YOUR responses to the Special Interrogatories served herewith. REQUEST NO. 11: Please produce any and all DOCUMENTS that RELATE TO any negotiations between YOU and any of YOUR clients RELATING TO the time and·place where YOUR California security guards were to work, which took place, were created, disseminated, and/or applied during the RELEVANT TIME PERIOD. REQUEST NO. 12: Please produce any and all DOCUMENTS that RELATE TO any negotiations between 8 PLAINTIFF'S FIRST SET OF REQUESTS FOR PRODUCTION OF DOCUMENTS TO DEFENDANT 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 YOU and any of YOUR clients RELATING TO the type of work to be performed by YOUR California security guards, which took place, were created, disseminated, and/or applied during the RELEVANT TIME PERIOD. REQUEST NO. 13: Please produce any and all DOCUMENTS that RELATE TO any negotiations between YOU and any of YOUR clients RELATING TO the working conditions of YOUR California security guards, which took place, were created, disseminated, and/or applied during the RELEVANT TIME PERIOD. REQUEST NO. 14: Please produce any and all DOCUMENTS that RELATE TO any negotiations between YOU and any of YOUR clients RELATING TO the quality and price for the work of YOUR California security guards, which took place, were created, disseminated, and/or applied during the RELEVANT TIME PERIOD. REQUEST NO. 15: Please produce any and all DOCUMENTS that RELATE TO YOUR determination of work assignments for YOUR California security guards during the RELEVANT TIME PERIOD. REQUEST NO. 16: Please produce any and all DOCUMENTS that RELATE TO YOUR determination of work reassignments for YOUR California security guards during the RELEVANT TIME PERIOD. REQUEST NO. 17: Please produce any and all DOCUMENTS that RELATE TO any right YOUR California security guards had to refuse specific assignments during the RELEVANT TIME PERIOD. REQUEST NO. 18: Please produce any and all DOCUMENTS that RELATE TO any authority and/or right YOU had to reassign any of YOUR California security guards based on YOUR client's request during the RELEVANT TIME PERIOD. 9 PLAINTIFF'S FIRST SET OF REQUESTS FOR PRODUCTION OF DOCUMENTS TO DEFENDANT 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 REQUEST NO. 19: Please produce any and all DOCUMENTS that RELATE TO YOUR assignment and/or reassignment of work to YOUR California security guards during the RELEVANT TIME PERIOD. REQUEST NO. 20: Please produce any and all DOCUMENTS that RELATE TO YOUR setting the pay rates of YOUR California security guards during the RELEVANT TIME PERIOD. REQUEST NO. 21: Please produce any and all DOCUMENTS that RELATE TO the payment of any wages and/or compensation to YOUR California security guards during the RELEVANT TIME PERIOD. REQUEST NO. 22: Please produce any and all DOCUMENTS that RELATE TO YOUR right and/or authority to hire California security guards during the RELEVANT TIME PERIOD. REQUEST NO. 23: Please produce any and all DOCUMENTS that RELATE TO YOUR right and/or authority to fire California security guards during the RELEVANT TIME PERIOD. REQUEST NO. 24: Please produce any and all DOCUMENTS that RELATE TO any of YOUR California security guards being assigned to a particular client site for over 90 consecutive days. REQUEST NO. 25: Please produce any and all DOCUMENTS that RELATE TO YOUR contention that 24 · YOU are not a temporary 'service employer under Labor Code Section 201.3, including without 25 26 27 28 limitation, a security service employer as set forth in Section 20 1.3(b )(1 )(B). REQUEST NO. 26: Please produce any and all DOCUMENTS that RELATE TO YOUR payroll schedule for YOUR non-exempt security guard/officer employees in California in effect during the 10 PLAINTIFF'S FIRST SET OF REQUESTS FOR PRODUCTION OF DOCUMENTS TO DEFENDANT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 RELEVANT TIME PERIOD. REQUEST NO. 27: Please produce any and all DOCUMENTS that RELATE TO the date when wages were/are paid to YOUR non-exempt security guard/officer employees in California during the RELEVANT TIME PERIOD. REQUEST NO. 28: Please produce any and all DOCUMENTS that RELATE TO any registrations that any o current and/or former YOUR Security Guard/Officer employees have had pursuant to Chapter 11.5 (commencing with Section 7580) of Division 3 of the Business and Professions Code, at any time during the RELEVANT TIME PERIOD. REQUEST NO. 29: Please produce any and all DOCUMENTS that RELATE TO any registrations and/or licenses YOU have required for any of YOUR current and/or former YOUR Security Guard/Officer employees pursuant to Chapter 11.5 (commencing with Section 7580) of Division 3 of the Business and Professions Code, at any time during the RELEVANT TIME PERIOD. 18 DATED: November 6, 2017 DIVERSITY LAW GROUP, P.C. 19 20 21 22 23 24 25 26 27 28 ~~-------By: _____ -::---~---:-::-;-::------ Larry W. Lee Attornevs for PLAINTIFFS II PLAINTIFF'S FIRST SET OF REQUESTS FOR PRODUCTION OF DOCUMENTS TO DEFENDANT 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE (Code of Civil Procedure Sections 1013a, 2015.5) STATE OF CALIFORNIA ] ]ss. COUNTY OF LOS ANGELES ] I am employed in the County of Los Angeles, State of Califomia. I am over the age of 18 and not a party to the within action; my business address is 515 S. Figueroa Street, Suite 1250, Los Angeles, Califomia 90071. On November 6, 2017, I served the following document(s) described as: PLAINTIFF'S FIRST SET OF REQUESTS FOR PRODUCTION OF DOCUMENTS TO DEFENDANT on the interested parties in this action as follows: Spencer C. Skeen Marlene M. Moffitt Tim L. Johnson Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 4370 La Jolla Village Drive, Suite 990 San Diego, Califomia 92122 Attorneys for Defendant Inter-Con Security Systems, Inc. X BY ELECTRONIC SERVICE: Based on a court order I caused the above- entitled document(s) to be served through the Odyssey eFileCA E-Filing System at the website www.california.tylerhost.net, addressed to all parties appearing on the electronic service list for the above-entitled case. The service transmission was reported as complete and a copy of the filing receipt/confirmation will be filed, deposited, or maintained with the original document(s) in this office. I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on November 6, 20 'J, at Los Angel California. PROOF OF SERVICE EXHIBITB HIBI From: Sent: Larry W. Lee Sunday, July 1, 2018 4:18 PM To: 'Skeen, Spencer C' Cc: Subject: 'Dennis Hyun'; 'Moffitt, Marlene M.'; 'Edward Choi' RE: Singh v. lntercon Categories: Red Category Spencer, still haven't heard any response from you. So it appears that you are refusing our request and we will just appear for the ex parte which we will seek to have your MSJ denied, or in the alternative, continued to allow Plaintiff to seek the necessary discovery. Just to confirm, the ex parte will take place this Friday, July 6, 2018 in Department 1 of the Santa Clara Superior Court at 2:00p.m. -44'11UJ1fl. .fee DIVERSITY LAW GROUP, A P.C. 515 S. Figuet·oa St., Suite 1250 Los Angeles, California 90071 (213) 488-6555 telephone (213) 488-6554 facsimile From: Larry W. Lee [mailto:lwlee@diversitylaw.com] Sent: Wednesday, June 27, 2018 11:16 AM To: 'Skeen, Spencer c.' Cc: 'Dennis Hyun' ; 'Moffitt, Marlene M.' ; 'Edward Choi' Subject: RE: Singh v. lntercon Spencer, we never heard back from you. Please advise. -44'11UJ1fl. .fee DIVERSITY LAW GROUP, A P.C. 515 S. Figueroa St., Suite 1250 Los Angeles, California 90071 (213) 488-6555 telephone (213) 488-6554 facsimile From: Larry W. Lee [mailto:lwlee@diversitylaw.com] Sent: Thursday, June 21, 2018 10:33 PM To: 'Skeen, Spencer C.' Cc: 'Dennis Hyun' ; 'Moffitt, Marlene M.' ; 'Edward Choi' Subject: RE: Singh v. lntercon 1 Spencer your MSJ is seeking a ruling that Defendant are not a temporary services employer. Our discovery seeks evidence to establish that your client is in fact a temporary services employer. It is laid out in our discovery motions. As to the 90 day issue, as we have repeatedly stated, the statute specifically holds that the 90 day exemption does not apply to security guards. In any event, this is merely to move your MSJ until after we have had our discovery, which is very normal and routine. Look forward to hearing from you. Please let me know what time you want to talk. Thanks . ..14M9 11/. .Lee DrVERSITY LAW GROUP, A P.C. 515 S. Figueroa St., Suite 1250 Los Angeles, California 90071 (213) 488-6555 telephone (213) 488-6554 facsimile From: Skeen, Spencer C. [mailto:spencer.skeen@ogletree.com] Sent: Thursday, June 21, 2018 4:28 PM To: lw!ee@diversitylaw.com Cc: Dennis Hyun ; Moffitt, Marlene M. ; Edward Choi Subject: Re: Singh v. lntercon Larry, I am out of the office today. We can talk tomorrow. Please identify the discovery you believe relates to issues presented by the summary judgment motion. Are you denying that your client worked for the same location for more than 90 days? Spencer C. Skeen Shareholder Ogletree, Deakins, Nash, Smoak & Stewart, P.C. Cell: 619.889.5051 Sent from my iPhone On Jun 21, 2018, at 2:29PM, Larry W. Lee wrote: Counsel, if we cannot get this worked out by tomorrow, please be advised that we have reserved July 6 at 2pm in Dept 1 for an ex parte to continue your MSJ. Thanks . ..14'Wf "/(). .Lee DIVERSITY LAW GROUP, A P.C. 515 S. Figueroa St., Suite 1250 Los Angeles, California 90071 (213) 488-6555 telephone (213) 488-6554 facsimile From: Dennis Hyun [mailto:dhyun@hyunlegal.com] Sent: Wednesday, June 20, 2018 3:02 PM To: 'Moffitt, Marlene M.' ; 'Skeen, Spencer c.' Cc: !wlee@diversitylaw.com; 'Edward Choi' Subject: Singh v. lntercon Dear Counsel, 2 We have been served with your Motion for Summary Judgment set for hearing on August 31, 2018. At the Informal Discovery Conference, to the extent that Defendant files a motion for summary judgment, Judge Walsh stated he would grant a continuance for Plaintiff to conduct discovery pursuant to CCP 437c(h). We see that your motion seeks adjudication on the grounds that you are not a temporary services employer. Our discovery, which is now the subject of our motion to compel, seeks discovery relating to the temporary services employer elements. The hearing on our discovery motions is now August 10, 2018, which does not provide enough time to obtain a ruling and then further responses and documents to oppose Defendant's Motion for Summary Judgment by our current deadline of August 17, 2018. Please advise whether you will stipulate to a continuance of the hearing so we can obtain the discovery. Otherwise, we will have to appear ex parte to seek an order continuing the hearing on the motion for summary judgment to permit discovery, or denying the motion for summary judgment. Please let us know your position by June 22, 2018. Thanks. Dennis S. Hyun, Esq. 515 South Figueroa Street, Suite 1250 Los Angeles, CA 90071 Tel: (213) 488-6555 Fax: (213) 488-6554 www.hyunlegal.com Any tax information or written tax advice contained herein (including any attachments) is not intended to be and cannot be used by any taxpayer for the purpose of avoiding tax penalties that may be imposed on the taxpayer. (The foregoing legend has been affixed pursuant to U.S. Treasury Regulations governing tax practice.) The information contained in this transmission is attorney privileged and/or confidential information intended for the use of the individual or entity named above. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copying ofthis communication is strictly prohibited. This transmission is intended only for the proper recipient(s). It is confidential and may contain attorney-client privileged information. If you are not the proper recipient, please notify the sender immediately and delete this message. Any unauthorized review, copying, or use of this message is prohibited. 3 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE (Code of Civil Procedure Sections 1013a, 2015.5) STATE OF CALIFORNIA COUNTY OF LOS ANGELES ] ]ss. ] I am employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action; my business address is 515 S. Figueroa Street, Suite 1250, Los Angeles, California 90071. On July 5, 2018, I served the following document(s) described as: PLAINTIFF'S EX PARTE APPLICATION FOR AN ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, CONTINUING THE HEARING ON DEFENDANT'S MOTION TO PERMIT DISCOVERY PURSUANT TO CALIFORNIA CODE OF CIVIL PROCEDURE § 437c(h); MEMORANDUM OF POINTS AND AUTHORITIES; AND DECLARATION OF LARRY W. LEE IN SUPPORT on the interested parties in this action as follows: Spencer C. Skeen Marlene M. Moffitt Tim L. Johnson Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 4370 La Jolla Village Drive, Suite 990 San Diego, California 92122 Attorneys for Defendant Inter-Con Security Systems, Inc. X BY ELECTRONIC SERVICE: Based on a court order I caused the above- entitled document(s) to be served through the Odyssey eFileCA E-Filing System at the website www.californi'a.tylerhost.net, addressed to all parties appearing on the electronic service list for the above-entitled case. The service transmission was reported as complete and a copy of the filing receipt/confirmation will be filed, deposited, or maintained with the original document(s) in this office. I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on July 5, 2018 at Los Angeles, California. PROOF OF SERVICE Electronically filed by Superior Court of CA, County of Santa Clara, on 7/5/2018 10:23 AM Reviewed By:R. Walker Case #17CV313202 Env #1691213