Opposition Objections

Cal. Super. - 6th Dist.July 24, 2018

OPPOSITION TO MOTION TO COMPEL AND REQUEST FOR MONETARY SANCTIONS 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 Robert W. Ottinger (SBN 156825) THE OTTINGER FIRM, P.C. 535 Mission Street San Francisco, CA 94105 robert@ottingerlaw.com ashley@ottingerlaw.com Tel: 917-566-2037 Fax: 212-571-0505 Attorneys for Plaintiff John Ortiz SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA JOHN ORTIZ, on behalf of himself and all other aggrieved employees, Plaintiff, vs. CALIFORNIA CEMETERY AND FUNERAL SERVICES LLC, and DOES 1-10, inclusive, Defendants. Case No. 18CV331774 PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION TO COMPEL AND REQUEST FOR MONETARY SANCTIONS Hearing Date: Hearing Time: Hearing Place: Complaint Filed: Jury Trial Date: June 7, 2019 9:00 a.m. Department 5 July 24, 2018 None Set Electronically Filed by Superior Court of CA, County of Santa Clara, on 5/23/2019 1:07 PM Reviewed By: R. Burciaga Case #18CV331774 Envelope: 2920948 18CV331774 Santa Clara - Civil R. Burciaga OPPOSITION TO MOTION TO COMPEL AND REQUEST FOR MONETARY SANCTIONS 1 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 la w ye rs I. INTRODUCTION Plaintiff John Ortiz (“Plaintiff”) is a former employee of Defendant California Cemetery and Funeral Services, LLC (“Defendant”). Plaintiff worked in body removal and disposal services, and his duties entailed receiving calls from Defendants to pick up deceased bodies, transporting them to Defendant’s funeral location, and preparing them for funeral services. During Plaintiff’s employment tenure, Defendant improperly required Plaintiff to be “on call” around the clock, contacting him at all hours of the day. Plaintiff was specifically instructed to remain available at all times, and was often unable to take uninterrupted off-duty meal and rest breaks while on the job, nor paid premium wages or overtime for his work as required by California law. Unsurprisingly, as in most such cases, Defendant did not maintain written policies instructing its managers to violate California law, but communicated these illegal demands and policies orally to Plaintiff and other employees. When Plaintiff eventually stood up for himself, he was terminated. Defendant has responded to this lawsuit with an aggressive and improper “scorched earth” discovery approach, apparently in an attempt to intimidate a working-class former employee. Defendant propounded 57 specially prepared interrogatories in violation of California law limiting a party to 35 interrogatories. Moreover, many of these interrogatories contained compound and conjunctive questions, further adding to the number of questions propounded in excess of the legal limit. Defendant attempted to justify this oppressive behavior with a barebones declaration “explaining” the need for these additional interrogatories in what is essentially a straightforward wage and hour case, but this barebones declaration is insufficient for the actions taken by Defendant. Rather than immediately move for a protective order, Plaintiff and his counsel have worked cooperatively with Defendant in an attempt to informally resolve this discovery dispute pertaining to the Special Interrogatories, as well as Defendant’s contention that Plaintiff has not fully responded to Defendant’s Form Interrogatory no. 17.1. In his discovery responses, Plaintiff has provided complete answers with all of the information within his possession at this early stage in the litigation. It must be remembered that most of the important evidence was either transmitted OPPOSITION TO MOTION TO COMPEL AND REQUEST FOR MONETARY SANCTIONS 2 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 la w ye rs orally or remains in the possession of the Defendant employer, and the fact that Plaintiff’s responses to Defendant’s exhaustive discovery demands are not as fulsome as Defendant would like is a situation entirely of Defendant’s making. Plaintiff intends to develop his case further through the discovery process, but his attentions have been diverted by this improper motion practice. Defendant’s Motion to Compel Further Responses to Form and Special Interrogatories and Monetary Sanctions (“Motion”) seeks to compel further discovery responses despite the fact that (1) Defendant has exceeded the number of special interrogatories permitted a party pursuant to Cal. Code Civ. Proc. § 2030.030; (2) Plaintiff has already sufficiently and substantively responded to Defendant’s propounded discovery; and (3) Defendant could seek further information via Plaintiff’s deposition, yet Defendant has now scheduled (and subsequently canceled) this deposition four times. Defendant’s Motion is improper, misguided, and based on the false premise that Plaintiff has given less than full, accurate, and complete responses to Defendant’s discovery demands. Indeed, Plaintiff has met his discovery obligations by providing all factual information responsive to Defendant’s discovery demands that is within his knowledge and possession at this early stage in the litigation. Plaintiff and his counsel have attempted diligently to resolve discovery disputes amicably, but Defendant has instead decided to waste the parties’ and the Court’s time by persisting in a claim that Plaintiff’s responses are insufficient. Defendant’s excessive discovery demands, gamesmanship in noticing, then rescheduling Plaintiff’s deposition multiple times, and insistence that Plaintiff’s proffered good faith responses are incomplete constitute tactics that are burdensome, harassing, and contrary to the principles of the discovery process. For these reasons, the Court should deny Defendant’s Motion in its entirety and grant Plaintiff’s request for monetary sanctions against Defendant. II. PROCEDURAL HISTORY Plaintiff in these proceedings, John Ortiz, filed his Representative Action Complaint (“Complaint”) on July 24, 2018, asserting one cause of action under Cal. Lab. Code §§ 2698 et seq. for violations of Cal. Labor Code §§ 201, 202, 203, 204, 226, 226.7, 510, 512, 1194, 1197, OPPOSITION TO MOTION TO COMPEL AND REQUEST FOR MONETARY SANCTIONS 3 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 la w ye rs 1198, 2800, and 2802. (Declaration of Robert Ottinger in Support of Plaintiff’s Opposition to Defendant’s Motion to Compel and Request for Monetary Sanctions (“Ottinger Decl.) ¶ 3.) Defendant California Cemetery and Funeral Services, LLC propounded significant discovery, including 57 special interrogatories1 in excess of limits set forth in Cal. Code Civ. Proc. § 2030.030, and attempted to justify the demands with a barebones declaration lacking factual specifics or support. (Id. at ¶ 4.) Plaintiff responded to these discovery demands on February 15, 2019, yet Defendant contended that additional responses were required. (Id. at ¶ 5.) Plaintiff attempted to resolve this discovery dispute informally and in good faith by meeting and conferring with Defendant’s counsel both via email and telephone, and supplementing his discovery responses in a letter to Defendant’s counsel dated March 11, 2019. (Id. at ¶ 6.) However, Defendant persists in its demands via its Motion to Compel Further Responses to Form and Special Interrogatories and Monetary Sanctions dated May 2, 2019. (Id. at ¶ 7.) Defendant initially noticed Plaintiff’s deposition for February 24, 2019. (Ottinger Decl. ¶ 8.) Defendant subsequently amended its Notice of Deposition, rescheduling Plaintiff’s deposition to March 19, 2019. (Ibid.) Plaintiff’s deposition was rescheduled yet again to May 10, 2019. (Ibid.) On May 8, 2019, just two days prior to Plaintiff’s deposition, Defendant’s counsel informed Plaintiff’s attorney that it would be cancelling the May 10, 2019 deposition and noticing Plaintiff’s deposition for the fourth time for June of 2019. (Id. at ¶ 9.) III. ARGUMENT A. Plaintiff Has Adequately Responded to Defendant’s Form Interrogatory No. 17.1 Defendant’s claim regarding Plaintiff’s allegedly insufficient response to Form Interrogatory no. 17.1 is predicated on Plaintiff’s responses to/denials of Defendant’s Requests for Admission (“RFA”). “RFAs serve a somewhat different purpose than other forms of discovery. According to Witkin, an RFA ‘is not a discovery device. Its objective is the same as that of the 1 Defendant’s Special Interrogatories were dated November 28, 2018, not November 19, 2019 as stated in Defendant’s Motion. OPPOSITION TO MOTION TO COMPEL AND REQUEST FOR MONETARY SANCTIONS 4 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 la w ye rs pretrial conference: to obtain admissions of uncontroverted facts learned through other discovery methods, and thereby to narrow the issues and save the time and expense of preparing for unnecessary proof.’” (Burch v. Gombos (2000), 82 Cal. App. 4th 352, 358-59 quoting 2 Witkin, Cal. Evidence (3d ed. 1986) Discovery and Production of Evidence, § 1553, p. 1506.) Plaintiff answered all of Defendant’s propounded RFAs with either admissions or denials, properly putting Defendant on notice of which facts are at issue in this case. With regards to Form Interrogatory no. 17.1, which requests further information about Plaintiff’s RFA responses that were not unqualified admissions, Plaintiff informed Defendant that individuals in possession of relevant facts were identified in response to Form Interrogatory no. 12.1 and Plaintiff, after a diligent search, could not identify corroborating documents or tangible things to support his responses. This is a completely adequate answer given that Plaintiff responded in full to the RFAs (putting Defendant on notice of contended issues). Furthermore, because many of the facts in this case are in Defendant’s possession, and the lack of documents supporting Plaintiff’s claim is due to Defendant oral communication of its illegal policies and its implementation of improper practices and procedures, Plaintiff’s response to Form Interrogatory no. 17.1 is sufficient to meet his discovery obligations. B. Defendant Propounded Far More than Thirty-Five Special Interrogatories Defendant propounded special interrogatories that violate California law in multiple ways. First, Defendant far exceeded California’s numerical limitation that only thirty-five (35) special interrogatories be propounded by any party during a litigation. (Cal. Code Civ. Proc. § 2030.030 [“A party may propound to another party . . . Thirty-five specially prepared interrogatories.”].) A party may only propound more than 35 special interrogatories if it declares pursuant to Cal. Code Civ. Proc. §§ 2030.040-2030.050 that “(1) the complexity or the quantity of the existing and potential issues in the particular case; (2) the financial burden on a party entailed in conducting the discovery by oral deposition; [and] (3) the expedience of using this method of discovery” necessitates exceeding the 35 interrogatory limit. OPPOSITION TO MOTION TO COMPEL AND REQUEST FOR MONETARY SANCTIONS 5 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 la w ye rs Here, Defendant propounded 57 special interrogatories, but it did not justify this excess number, nor seek permission from the Court to exceed the number permitted by California law. This fact alone renders Defendant’s Motion fatal as to special interrogatories 36-57. (See Cal. Code Civ. Proc. § 2030.030(c) [“Unless a declaration as described in Section 2030.050 has been made, a party need only respond to the first 35 specially prepared interrogatories served.”].) While Defendant submitted a barebones declaration quoting the language from Cal. Code Civ. Proc. § 2030.040, this conclusory allegation, without more, cannot justify Defendant’s excessive and oppressive number of special interrogatories. First, there is nothing regarding “the complexity or quantity of the existing or potential issues in this case” necessitating dozens of additional interrogatories. While all cases are complex in their own way, this matter is a relatively straightforward wage and hour case, with Plaintiff making straightforward allegations, including that he was not allowed by his employer (Defendant) to take uninterrupted off-duty meal and rest breaks, was not paid a premium for foregoing these breaks, and was not paid overtime while he was “on the clock” in violation of the California Labor Code. These allegations are “bread and butter” wage and hour claims and revolve around the illegal practices of Defendant. Not only are these issues not inordinately complex, factual documentation relevant to many of these allegations - such as internal policies and records - would be within the exclusive control of Defendant. Thus, no need exists to propound dozens of additional interrogatories. Second, Defendant cannot argue that “the financial burden” entailed in deposing Plaintiff requires an excessive number of special interrogatories. Defendant is a financially solvent and healthy California-based corporation; Plaintiff is a working-class individual employee living in California. It would cost Defendant nothing beyond the normal cost of litigation to depose Plaintiff and conduct a straightforward deposition. In fact, Defendant has scheduled Plaintiff’s deposition four times, indicating Defendant’s clear intention to depose Plaintiff eventually. The cost of doing so almost certainly is less than the months-long letter writing campaign and Defendant’s Motion to compel further responses to improper special interrogatories. OPPOSITION TO MOTION TO COMPEL AND REQUEST FOR MONETARY SANCTIONS 6 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 la w ye rs Third, and related to the second point, Defendant cannot possibly argue that propounding dozens more special interrogatories is in any way more “expedient” than simply deposing Plaintiff and asking him questions. This months-long saga and discovery motion practice was entirely avoidable; as discussed further in Section E, infra, if Defendant was dissatisfied with Plaintiff’s complete and accurate responses to its interrogatories, Defendant should have simply deposed Plaintiff. That approach would have been far more expedient than the state of affairs the parties currently find themselves in. C. Defendant’s Special Interrogatories are Improper in Format and Substance In addition to the number of special interrogatories, the form of Defendant’s special interrogatories violates California law. In particular, many of Defendant’s special interrogatories contain subparts, compounds, and conjunctives in an improper end-run around the 35 special interrogatory limit. Cal. Code Civ. Proc. § 2030.060(f) prohibits specially prepared interrogatories that “contain subparts, or a compound, conjunctive, or disjunctive question.” For example, Special Interrogatory no. 16 concerns Plaintiff’s inability to perform personal tasks while on call for Defendant. Defendant improperly asks Plaintiff to identify “who prevented YOU from engaging in personal activities, AND how YOU were prevented from doing so.” This conjunctive use of the word “and” is improper because it asks two interrogatories in one question. This same conjunctive approach is used in Special Interrogatory no. 13, which asks Defendant to identify “who prevented YOU from taking a rest period [during work] and how YOU were prevented from doing so.” These types of interrogatories are not mere technicalities, but substantively improper ways for parties to circumvent the 35 special interrogatory limit. D. Plaintiff Has Adequately Responded to Special Interrogatories Nos. 2-4, 8, 10, 13, 16, 17, 43, 46, 49, 52, and 55. Perhaps the most basic reason why Defendant’s Motion fails is because it is based on the incorrect contention that Plaintiff has failed to adequately answer every interrogatory. This simply is not the case. Plaintiff has responded fully and completely. For example, Special Interrogatory no. 2 asks what days since January 1, 2017, Plaintiff was unable to take meal and rest breaks. OPPOSITION TO MOTION TO COMPEL AND REQUEST FOR MONETARY SANCTIONS 7 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 la w ye rs Plaintiff responded that he was never allowed to take meal and rest breaks while working, and that Defendant retains possession of the days in which Plaintiff worked. This is a textbook full and complete answer. For every day Plaintiff worked, he was unable to take a meal or rest break. Period. Further, Plaintiff has responded as fully and completely as possible, given the fact that most of the evidence relevant to this action was either transmitted orally or remains in the exclusive control of Defendant. “[T]he purpose of discovery is to permit access to matter known to, or within the control of, the other party.” (Schaefer v. Manufacturers Bank (1980), 104 Cal. App. 3d 70, 75.) Where the information sought is equally or more readily available to the party seeking it it is not error for the party from whom it is sought to not provide such information. (See id.) Special Interrogatory no. 3 asks Plaintiff to explain why he did not take rest periods. Plaintiff responded that he “was never able to take a rest period because of the pace of work and because no one ever made him aware of a policy, if Defendant had one, allowing for rest periods.” Because Defendant largely communicated employment and scheduling demands orally to its employees, and because, to Plaintiff’s knowledge, no written policies exist memorializing Defendant’s improper conduct , Plaintiff has answered this discovery request to the fullest extent of his knowledge. The above holds true for Plaintiff’s answers to Defendant’s other Special Interrogatories to which Defendant seeks to compel further responses. Special Interrogatories nos. 4, 8, 10, 13, 43, 46, and 49 demand further information pertaining to meal and rest periods, and Defendant’s own implementation of policies and procedures pertaining to the same. Plaintiff has responded in full to these demands, particularly given that any policies, whether official or unofficial, are in the possession of Defendant. Moreover, Plaintiff cannot be legitimately expected to know all of the factual circumstances surrounding missed off-duty meal and rest periods at this stage of the litigation, particularly because Defendant, via its illegal employment practices, did not properly communicate to Plaintiff that he was entitled to take these breaks, nor was Plaintiff afforded them. With regards to Special Interrogatory nos. 16 and 17, Defendant seeks information pertaining to Plaintiff’s claims that he could not engage in personal activities given the on-call OPPOSITION TO MOTION TO COMPEL AND REQUEST FOR MONETARY SANCTIONS 8 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 la w ye rs schedule to which he was subjected by Defendant. Plaintiff adequately responded that his contention is based on the frequency of calls and the length of time required to respond to Defendant’s calls. Again, the further information sought by Defendant is within Defendant’s control, not that of Plaintiff. Defendant presumably should have records of the number of times it contacted Plaintiff, the length of the calls it assigned to Plaintiff, its representative individuals who contacted Plaintiff, and how far apart Defendant’s own calls were spaced. Moreover, it is ludicrous for Defendant to fault Plaintiff for his response that it was the nature and pace of the work, not a specific individual, who prevented Plaintiff from engaging in personal activities, given that the problematic nature and pace of the work is clearly the foundation for this claim. Defendant contends that it is entitled to more information responsive to Special Interrogatory no. 52 requesting more information about how Plaintiff was damaged by Defendant’s failure to provide an accurate written wage statement. Plaintiff has very clearly responded that he was deprived of his right to receive an accurate statement showing hours actually worked.2 In citing Maldonado v. Episilon Plastics (2018) 22 Cal. App. 5th 1308, 1304, for the assertion that Plaintiff needs to further prove injury at this stage of the litigation, Defendant appears to confuse Plaintiff’s discovery obligations with requisite proof of a claim at trial. Plaintiff has also responded in full to Special Interrogatory no. 55, which asks Plaintiff to support his contention that, by failing to pay Plaintiff earned premium and overtime wages, Defendants failed to pay Plaintiff his earned wages in full. Defendant faults Plaintiff for restating this allegation in his response, but there is no more information to offer. If Defendant failed to pay Plaintiff wages to which he was entitled, Defendant failed to pay Plaintiff earned wages in full. It 2 The Complaint also included the following allegations, putting Defendant on further notice regarding the foundation for Plaintiff’s wage statement claim: “Plaintiffs have suffered injuries due to Defendants’ failures to provide them with accurate written wage statements in that, among other things, their legal rights to receive accurate wage statements have been violated, they have been misled about the amounts of wages they have earned, they have been prevented from immediately challenging allegedly unlawful pay practices, they have needed or will need to reconstruct time and pay records and perform mathematical computations to determine the amounts of wages they have earned, and they have had inaccurate information about their wages and deductions submitted to government agencies.” (Ottinger Decl. ¶ 10.) OPPOSITION TO MOTION TO COMPEL AND REQUEST FOR MONETARY SANCTIONS 9 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 la w ye rs is unclear what other information Defendant contends Plaintiff should provide (as Defendant’s Separate Statement in Support of Motion to Compel (“Separate Statement”) is vague in this regard), but anything further seems to improperly seek legal reasoning or theory as to why Defendant is in violation of California law for failing to pay Plaintiff his rightfully earned wages. Defendant’s attempt to obtain Plaintiff’s legal reasoning is an improper discovery tactic. (Sav-On Drugs, Inc. v. Super. Ct. of L.A. County (1975), 15 Cal. 3d 1, 5 [“A party’s contention may be the subject of discovery, but not the legal reasoning or theory behind the contention.”].) E. Defendant Should Depose Plaintiff if It Remains Dissatisfied with Plaintiff’s Complete and Accurate Interrogatory Responses Defendant contends that Plaintiff has engaged in improper discovery tactics, yet Defendant has noticed and rescheduled Plaintiff’s deposition (along with a request for documents) no fewer than four times. If Defendant truly sought to obtain clarification from Plaintiff of his written discovery responses and to ask the sort of follow-up questions to Defendant’s demands that are set forth in its Motion and Separate Statement, Defendant could do so via Plaintiff’s deposition. Instead, Defendant has chosen to burden Plaintiff in requiring him to adjust and readjust his schedule to accommodate Defendant’s whims. This calls into question Defendant’s true motivation with regards to discovery in this case, and reinforces what appears to be Defendant’s harassment of Plaintiff in seeking to compel more information via written discovery than Plaintiff has already provided. F. Monetary Sanctions in Favor of Plaintiff Are Not Warranted and Plaintiff Is Entitled to Sanctions for Opposing this Motion “Misuses of the discovery process include, but are not limited to, the following: (c) Employing a discovery method in a manner or to an extent that causes unwarranted annoyance, embarrassment, or oppression, or undue burden and expense… (h) Making or opposing, unsuccessfully and without substantial justification, a motion to compel or to limit discovery.” (Cal. Code Civ. Proc. § 2023.010.) Furthermore, “the court may impose a monetary sanction ...on one unsuccessfully asserting that another has engaged in the misuse of the discovery process, or on any attorney who advised that assertion, or on both.” (Cal. Code Civ. Proc. § 2023.030(a).) OPPOSITION TO MOTION TO COMPEL AND REQUEST FOR MONETARY SANCTIONS 10 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 la w ye rs Under Cal. Code Civ. Proc. § 2023.010, Defendant and its attorneys have brought this motion without any justification. Plaintiff fully complied with his discovery obligations and Defendant has unjustly and untruthfully accused him of withholding information. This motion serves to harass Plaintiff and waste his attorneys’ time. Therefore, Defendant and its attorneys should be subject to sanctions for submitting this motion to compel. Plaintiffs request an order denying Defendant’s request for monetary sanctions and requiring Defendant and its attorneys, Gurnee Mason Rushford Bonotto & Forestiere LLP, to pay sanctions in the amount of $7,920.00. (Ottinger Decl. ¶ 11.) IV. CONCLUSION Plaintiff John Ortiz respectfully requests that the Court deny Defendant’s Motion to Compel Further Responses to Form and Special Interrogatories and Monetary Sanctions and grant Plaintiff’s request for monetary sanctions in the amount of $7,920.00. Respectfully Submitted, Dated: May 23, 2019 THE OTTINGER FIRM, P.C., By: ____________________________ Robert Ottinger robert@ottingerlaw.com Attorneys for Plaintiffs