Annalee Mathis vs. Perkins & Marie Callender'S LLC

Motion to Compel ProductionInspection of Documents or Things

Cal. Super. - 4th Dist.December 11, 2015

13 14 I5 16 17 18 19 20 21 22 23 24 25 26 27 28 ELECTRONICALLY FILED Superior Court of California, County of Orange 0340/2017 at 05:00:00 Ph Gene J. Goldsman SBN 76554 Clerk of the Superior Court LAW OFFICES OF GENE J. GOLDSMAN By Loc Nguyen, Deputy Clerk 501 Civic Center Drive West Santa Ana, CA 92701-4059 (714) 541-3333/FAX (714) 541-0456 Attorneys for plaintiffs, ANNALEE MATHIS and MICHAEL MATHIS SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE - CENTRAL JUSTICE CENTER ANNALEE MATHIS; and MICHAEL Case No.: 30-2015-00824878 MATHIS Assigned: Hon. David R. Chaffee Dept.: C20 Plaintiffs, PLAINTIFF, ANALEE MATHIS’ NOTICE OF Vv. MOTION AND MOTION TO COMPEL ORIGINAL VERIFIED RESPONSES AND PERKINS & MARIE CALLENDER'S, FURTHER RESPONSES TO PLAINTIFF'S LLC; and DOES 1 to 100, PROPOUNDED, REQUEST FOR PRODUCTION OF DOCUMENTS, SET TWO: Defendants. AND REQUEST FOR PRODUCTION OF DOCUMENTS, SET THREE AGAINST DEFENDANT, PERKINS & MARIE CALLENDER'’S, INC.; MEMORANDUM OF POINTS & AUTHORITIES; MONETARY SANCTIONS AGAINST DEFENDANT AND THEIR ATTORNEY OF RECORD FOR $2,160; AND [PROPOSED] ORDER [CALIFORNIA RULE OF COURT 3.1345 et seq.] [Filed concurrently with Declaration of Evan A. Blair, Esq. And Attached Exhibits (Vol. I, II, and Ill); Plaintiffs’ motion to compel further responses to special interrogatories set two and set three against Defendant; Plaintiff's motion to compel further responses to request for production set two and set three against Defendant; Plaintiff's Separate Statement pursuant to California Rule of Court 3.1345 et seq., and “Proposed” Order lodged with the Court, concurrently) i NOTICE OF MOTION AND MOTION FOR ORDER COMPELLING DEFENDANT TO RESPOND TO REQUST FOR PRODUCTION OF DOCUMENTS, SET TWO AND SET THREE; REQUEST FOR MONETARY SANCTIONS: MEMORANDUM OF LAW; DECLARATION OF EVAN A. BLAIR, ESQ.; AND [PROPOSED] ORDER 11 12 13 14 18 19 20 21 22 23 24 25 26 27 28 Date: April 7, 2017 Time: 9:30 a.m. Dept.: C20 Reservation #72549110 Reservation #72549148 [Two Different Motions To Compel Filed by Plaintiff Concurrently] TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that, on April 7, 2017, at 9:30 a.m., or as soon thereafter as the matter may be heard in Department C-20 of the above entitled court, located at 700 Civic Center Drive West, Santa Ana, CA, 92701, Plaintiff ANNALEE MATHIS (“plaintiff”) will and hereby does move The Court for an order compelling Defendant PERKINS & MARIE CALLENDER’S INC. (“defendant”) to provide original verified responses and/or further responses to plaintiff's requests for production of documents, set two which were propounded on December 8, 2016 and to provide original verified responses and/or further responses to plaintiff’s request for production of documents set three which were propounded January 12, 2017. PLEASE TAKE FURTHER NOTICE that Plaintiff requests that The Court impose monetary sanctions against Defendant, PERKINS & MARIE CALLENDER’S, INC. DBA MARIE CALLENDER'’S and their attorney, Marissa Gittler, Esq., and law firm, Manning & Kass, Elirod, Ramirez, Trester, LLP, all jointly and severely, in the amount of $2,160, in reimbursement of costs and fees incurred in having to bring this motion and appear at hearing on the motion. This Motion is brought pursuant to California Code of Civil Procedure section 2031.010 (a)- (e), 2031.030 ef seq., 2031.300 et seq. including subdvs. (c) for monetary sanctions, on the ground that Defendant has failed to respond to Plaintiff's Special Interrogatories, set two and set three. This Motion is also brought in the alternative, and under California Code of Civil Procedure section 2031.310(a)-(j) including subdvs. (h) for sanctions, for a further response on the ground that Defendant has failed to respond to Plaintiff’s Special Interrogatories, set two and set three. This motion is also brought and made pursuant to, California Code of Civil Procedure §§, 2031.010 -- 2031.510, § 2019.010 ef seq. § 2017.010 ef seq., §§, 2023.010 - 2023.040 ef seq., as well as the ii NOTICE OF MOTION AND MOTION FOR ORDER COMPELLING DEFENDANT TO RESPOND TO REQUST FOR PRODUCTION OF DOCUMENTS, SET TWO AND SET THREE; REQUEST FOR MONETARY SANCTIONS; MEMORANDUM OF LAW; DECLARATION OF EVAN A. BLAIR, ESQ.; AND [PROPOSED] ORDER 20 21 22 23 24 25 26 27 28 entirety of Code of Civil Procedure §§ 128, 166, 167, 187 and California law. Plaintiff seeks the relief sought herein or any relief the Court deems just and proper. This Motion is based upon this Notice of Motion, the attached Memorandum of Points and Authorities, the Declaration of Evan A. Blair, Esq., and Attached Exhibits; Plaintiff's Separate Statement pursuant to California Rule of Court 3.1345 et seq., the court file and records in this action, and such further oral and documentary evidence as may be presented at the hearing of the Motion. This Motion is further based upon the concurrently filed, Notice of Motion, Memorandum of Points and Authorities on plaintiff’s motion to compel original verified and/or in the alternative, further responses to plaintiff's Request for Production of Documents, set two and Request for Production of Documents, set three. This Motion is further based on the Declaration of Evan A. Blair, Esq. and Attached Exhibits filed with the court on January 6, 2017 and Declaration of Evan A. Blair, Esq. and Attached Exhibits filed with the court on or about February 14, 2017 both of which discuss this case’s discovery history. Dated: March 10, 2017 LAW OFFICES OF GENE J. GOLDSMAN Gene J. Goldsman, Esq. Evan A. Blair, Esq. Fernando Brito, Jr., Esq. Attorney for Plaintiffs, ANNALEE MATHIS and MICHAEL MATHIS iii NOTICE OF MOTION AND MOTION FOR ORDER COMPELLING DEFENDANT TO RESPOND TO REQUST FOR PRODUCTION OF DOCUMENTS, SET TWO AND SET THREE; REQUEST FOR MONETARY SANCTIONS; MEMORANDUM OF LAW: DECLARATION OF EVAN A. BLAIR, ESQ.; AND [PROPOSED] ORDER 10 11 12 13 18 19 20 21 22 23 24 25 MEMORANDUM I. INTRODUCTION This is a general negligence and products liability food consumption personal injury case brought by a husband and wife, Annalee Mathis and husband, Michael Mathis. Plaintiff, Annalee Mathis (“Annalee” or “plaintiff” dined with her husband, Michael Mathis (“Michael”) (collectively, “plaintiffs” or “plaintiff” (singular) used interchangeably) at defendant Marie Callender’s, Inc. dba Marie Callender’s, restaurant (“defendant” or “Marie Callender’s” or “restaurant” on Katella Ave in Orange, CA. Annalee and her husband ordered meals from defendant’s menu. Plaintiff Annalee was eating a purchased chicken dinner meal from defendant, Marie Callender’s Inc. on December 15, 2013, which included a side order of baby potatoes with the potato skin left on the baby potatoes. Annalee proceeded to eat a broiled skin-on, baby potato as a side dish in her purchased meal while seated at defendant’s restaurant. Plaintiff placed the baby potato in her mouth with an eating utensil and bit down on the potato to eat it when the potato suddenly exploded in her mouth and throat. The baby potato squirted boiling hot “potato matter” from within the center of the baby potato into her mouth and throat together. The potato’s matter seared and burned Annalee Mathis’ mouth tissues, throat, teeth, gums and lips with second and third degree burns. As a result of the incident, plaintiff has a speech impediment due to burn damage to her mouth, throat and tongue. Plaintiff's tongue taste buds have been destroyed. Plaintiff will need future dental work performed as a result of the incident. Plaintiff had fo eat baby food for 9 months post-incident at her physician’s instructions because the plaintiff’s mouth, lips, gums, teeth and throat potato burn injuries were so serious. The injuries to Annalee Mathis were well beyond any reasonable expectations of a consumer biting into any overheated potato food product that would customarily and “normally” cause the equivalent to a hot cheese pizza mouth tissue burn which would typically heal within days. Plaintiff Annalee’s damages in this case are extraordinary. The degree of foreign heat and temperature (from defendant’s heating sources) that the potato food product was subjected to before being served to plaintiff, was extremely hazardous. The injuries sustained by plaintiff were not a foreseeable outcome of any hot prepared and served food product for human consumption and product fitness. Plaintiff sustained serious injuries to her mouth, teeth, and gums with second and third degree burns to her mouth area. Plaintiff has suffered a loss of taste (buds) due to tongue damage. Plaintiff also suffers from a speech impediment as a result of the incident. This is more .1- NOTICE OF MOTION AND MOTION FOR ORDER COMPELLING DEFENDANT TO RESPOND TO REQUST FOR PRODUCTION OF DOCUMENTS, SET TWO AND SET THREE; REQUEST FOR MONETARY SANCTIONS: MEMORANDUM OF LAW: DECLARATION OF EVAN A. BLAIR, ESQ.; AND [PROPOSED] ORDER 10 11 12 13 16 17 18 19 20 21 22 23 24 25 26 27 28 than a consumer’s foreseeable expectation of the equivalent of a hot cheese pizza roof of mouth burn or “pizza burn” injury which heals in two days. Co-plaintiff, Michael Mathis’ makes a claim for loss of consortium damages. On December 8, 2016, by overnight courier plaintiff propounded Special Interrogatories, set two (See, Blair, Esq. decl., Exhibit Sa). On December 8, 2016 by overnight courier plaintiff propounded Request for Production of Documents, set two (Id. at Exhibit 6a). This discovery sought employee/agent related information and included precise definitions. Defendant had 30 days plus two days for overnight mailing to serve responses. On or about January 11, 2017, via telephone call and in writing defendant through counsel, Marissa Gittler, Esq. of defense law firm, Manning & Kass requested a short extension to respond in that she was meeting with defendant’s management on Friday, January 13, 2017. In response I provided her an extension to respond to these set twos, via US mail through Tuesday, January 17, 2017 with some confidence I would obtain original verified responses and in light of the fact that plaintiff has filed a motion to compel for prior discovery that had been ignored from April 2016 through mid-December 2016. As seen hereafter, the defendant failure to provide responses with verifications was done intentionally and in bad faith in complete disregard of defendant’s statutory discovery obligations (Infra). At no time did plaintiff provide this particular defendant any consent to serve written discovery responses via email, nor would I ever do this in light of the poor discovery responsive history with defendant and defendant counsel. On or about January 17, 2017, plaintiff received defendant’s responses to special interrogatories, set two and request for production, set two (collectively referred to hereafter as “set two” or “set 2” unless more specificity is identified). Both of these defendant written responses were missing verifications (Id. at Exhibit Sb and Exhibit 6b) These responses were riddled with objections, missing some definitions that were not copied over into defendant’s responses. The request for production, set two responses contained an unverified defendant “Weekly Work Schedule” that listed about 50 employees at the Katella Ave., City of Orange Marie Callender’s branch restaurant for the week of the whole incident (12/15/13) that was difficult to read and identified employee/agents work hours but no contact or defined “IDENTIFICATION” information was provided so these witnesses could be contacted, served with subpoena and investigation performed as to the business practices of the restaurant in storing, preparing, cooking and serving food and relations with customers, like plaintiffs. The identified employees had generic names that could not be tracked. No information as to business job titles/duties or other employee identification was _2. NOTICE OF MOTION AND MOTION FOR ORDER COMPELLING DEFENDANT TO RESPOND TO REQUST FOR PRODUCTION OF DOCUMENTS, SET TWO AND SET THREE; REQUEST FOR MONETARY SANCTIONS: MEMORANDUM OF LAW; DECLARATION OF EVAN A. BLAIR, ESQ.; AND [PROPOSED] ORDER 16 17 18 20 21 22 23 24 25 26 27 provided for those employees that worked the week of the incident which occurred on 12/15/13. Plaintiff’s written discovery sought employee contact information from 12/14/13 through 12/15/13 to cover odd potential employee work shifts surrounding the 12/15/13 date of incident. Plaintiff attempted to meet and confer with defendant in writing regarding the lack of verifications and substantive responses (Exhibit 1 and Exhibit 2 and revisited again in Exhibit 4 weeks later). No substantive response was received from defendant as to special interrogatories, set two, to date. No verification nor any justification has been provided. This is the start of a pattern. On January 12, 2017, by overnight courier, plaintiff propounded Special Interrogatories, set thee (Exhibit 7a) and request for production, set three (Exhibit 8a) On February 13, 2017, defendant served responses to plaintiff's special interrogatories, set three and request for production, set three. These set three responses were also both unverified responses and some responses pointed back to the set two unverified responses which is not permitted, even if set two responses were verified, which they were not. On February 17, 2017, plaintiff sent by fax and US mail, a meet and confer letter on the deficient and unverified defendant responses for set three. (Exhibit 3). again revisited this topic again in my email to defendant’s counsel, Marissa Gittler, Esq. on February 23, 2017 (along with discussing set two) (Exhibit 4) To date plaintiff has received no substantive meet and confer response back from defendant despite requests for such. This continues with a pattern and practice of burden, harassment and expense in response to discovery sought from defendant. Plaintiff’s “set four” special interrogatories and request for production of documents were also received unverified from defendant on March 9, 2017. This again confirms a pattern and practice. Defendant will only produce discovery when a motion to compel is pending with the court or the court sends a message to defendant that they must comply with reciprocal discovery sought by plaintiff. Although plaintiff’s counsel typically does not seek monetary sanctions, plaintiff requests monetary sanctions of $2,160 for the motion to compel original verified and/or further responses within 10 days or in the alternative a motion to compel further responses. Plaintiff also seeks $2,160 for the second motion to compel original verified responses and/or in the alternative original verified further responses. Defendant’s attempt is to misuse, delay and thwart the discovery process to burden, harass and oppress plaintiff monetarily and in preparation for trial. The time component is a factor. A motion to -3- NOTICE OF MOTION AND MOTION FOR ORDER COMPELLING DEFENDANT TO RESPOND TO REQUST FOR PRODUCTION OF DOCUMENTS, SET TWO AND SET THREE; REQUEST FOR MONETARY SANCTIONS: MEMORANDUM OF LAW; DECLARATION OF EVAN A. BLAIR, ESQ.; AND [PROPOSED] ORDER 12 13 14 15 16 17 20 21 22 23 24 25 26 27 28 compel is likely to come on plaintiff’s “set four” of special interrogatories related to sub-recipes sought by plaintiff from defendant that were not produced by defendant at deposition but are referenced by ID number within the chicken dinner meal plate recipe provided by defendant at the defendant’s February 1, 2017 PMK deposition, which finally occurred because plaintiff had filed a motion to compel against defendant after seeking discovery from defendant from April 2016 through December 2016 but without any response. Plaintiff incorporates by reference herein the Declaration of Evan A. Blair, Esq. and Attached Exhibits, Volume I, Volume IT and Volume III, as if set forth in full herein along with plaintiff’s concurrently filed Separate Statement. II. ARGUMENT A. PLAINTIFF IS ENTITLED TO CONDUCT DISCOVERY California Code of Civil Procedure section 2017.010 authorizes any party to obtain discovery regarding any matter that is not privileged that is relevant to the subject matter of the action. 1. A Litigant Has A Broad Right to Discovery Under The Civil Discovery Act Discovery is the formal exchange of evidentiary information and materials between parties to a pending action. Arnett v Dal Cielo (1996) 14 C4th 20. A party is entitled to disclosure in discovery as “a matter of right unless statutory or public policy considerations clearly prohibit it.” Greyhound Corp. v. Superior Court (1961) 56 C2d 355, interpreting the Discovery Act of 1957. The intention of the discovery statutes is to make discovery a “simple, convenient, and inexpensive” means of revealing the truth and exposing false claims. Greyhound Corp. at 376. Another purpose of the discovery statutes is to “educate the parties concerning their claims and defenses so as to encourage settlements and to expedite and facilitate trial.” Emerson Electric Co. v. Superior Court (1997) 16 Cal.4th 1101, 1107, citing Greyhound Corp v Superior Court (1961) 56 Cal.2d 355, 376. The statutes are also designed to eliminate surprise. Fairmont Ins. Co. v Superior Court (2000) 22 Cal.4th 245, 253 fn.2. 2. A Litigant’s Right To Discovery Is To Be Construed Liberally _4- NOTICE OF MOTION AND MOTION FOR ORDER COMPELLING DEFENDANT TO RESPOND TO REQUST FOR PRODUCTION OF DOCUMENTS, SET TWO AND SET THREE; REQUEST FOR MONETARY SANCTIONS: MEMORANDUM OF LAW; DECLARATION OF EVAN A. BLAIR, ESQ.; AND [PROPOSED] ORDER 10 11 12 13 17 18 19 20 21 22 23 24 25 26 27 28 California courts have reiterated that discovery provisions in the Civil Discovery Act of 1986 (CCP sections 2016-2036) and the Civil Discovery Act of 2005 (CCP sections 2016.010-2036.050), which replaces it, are to be liberally construed in favor of disclosure. Flagship Theaters of Palm Des., LLC v. Century Theaters, Inc. (2011) 198 Cal. App.4th 1366, 1383 (absent showing that substantial interests will be impaired by allowing discovery, liberal policies of discovery rules will generally counsel against overturning trial court’s decision granting discovery and militate in favor of overturning decision to deny discovery). For example, in a breach of contract action against an insurer, the court stated that “California’s pretrial discovery procedures are designed to minimize the opportunities for fabrication and forgetfulness, and to eliminate the need for guesswork about the other side’s evidence, with all doubts about discoverability resolved in favor of disclosure.” Glenfed Dev. Corp. v. Superior Court (1997) 53 Cal. App. 4th 1113, 1119. To accomplish the legislative purpose behind the discovery statutes, they “must be construed liberally in favor of disclosure.” Emerson Elec. Co. v Superior Court (1997) 16 Cal.4th 1101, 1107, quoting Greyhound Corp. v Superior Court (1961) 56 C2d 355, 377. [Emphasis Added] 2. Discovery is Subject to Exercise of Court’s Discretion with guidelines that limit a_court The right to discovery is subject to the management of the trial court exercising its sound discretion. See Greyhound Corp. v Superior Court (1961) 56 Cal. 2d 355, 382,. In exercising its discretion, the trial court bases its decisions on the language of the Civil Discovery Act and the legislative purpose of avoiding surprise and preventing fabrication of evidence at trial. Glenfield Dev. Corp. v Superior Court (1997) 53 Cal. App. 4th 1113, 1119. The principles announced by the California Supreme Court in the seminal case of Greyhound Corp. v Superior Court (1961) 56 Cal.2d 355 383, remain applicable, i.e.: *The legislative purpose of liberal discovery must not be subverted under the guise of exercise of discretion; *This purpose is to be given effect rather than thwarted, so discovery is encouraged; *Disputed facts should be liberally construed in favor of discovery, rather than in the most limited and restricted manner possible; *Statutory limitations on discovery should not, in the exercise of discretion, be extended beyond the limits expressed by the legislature; -5- NOTICE OF MOTION AND MOTION FOR ORDER COMPELLING DEFENDANT TO RESPOND TO REQUST FOR PRODUCTION OF DOCUMENTS, SET TWO AND SET THREE; REQUEST FOR MONETARY SANCTIONS; MEMORANDUM OF LAW; DECLARATION OF EVAN A. BLAIR, ESQ.; AND [PROPOSED] ORDER 10 il 12 13 14 16 17 18 19 20 21 22 23 24 25 26 27 28 *Judicial discretion may not be exercised in situations not included in the discovery statutes, e.g., denial of discovery based on a claim that the party seeking discovery is engaging in a fishing expedition.” Such matters may, however, be considered under the court’s statutory power to prevent misuse and advance the ends of justice; *When the facts are undisputed, or are reasonably susceptible to only one interpretation, the issue becomes one of law and is not subject to the exercise of discretion; *Whenever possible, a court should impose partial limitations on discovery rather than denying it entirely. In addition to the guidelines of Greyhound Corp. v Superior Court (1961) 56 C2d 355, 383, several other principles are well established in California discovery law exist that guide the court as follows: *A legal basis must exist for the trial court’s discretion. Carlson v. Superior Court of Los Angeles County (1961) 56 Cal. 2d 431. *In the face of an “irrelevance” objection, an order granting discovery is proper unless there is no reasonable possibility that the responses will lead to the discovery of admissible evidence or be helpful in preparing for trial. Sav-On Drugs v. Sup. Court (1975) 15 Cal. 3d 1; “Doubts concerning relevance should usually be resolved in favor of permitting discovery. Colonial Life & Accident Insurance Co. v. Superior Court (1982) 31 Cal.3d 785; *The concern for undue burden in discovery applies with greater weight when discovery is sought from a nonparty. Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal. App.4th 216; *All doubts about discovery are resolved in favor of disclosure. Glenfield Dev. Corp. Superior Court (1997) 53 Cal. App. 4™ 1113, 1119. The Discovery Act and the current case law make it clear-the trial court must have legal Justification for any order granting or denying discovery and an order lacking legal justification can be set aside on an appeal or request for a writ. See Johnson v. Superior Court (2000) 80 Cal. App.4th 1050, 1061, citing Greyhound Corp v. Superior Court (1961) 56 Cal.2d 355, 378. Though some aspects of discovery limitations are explicitly entrusted to the court’s discretion such as C.C.P. §2019.020(b) which gives the court the power to establish the sequence and timing of discovery for -6- NOTICE OF MOTION AND MOTION FOR ORDER COMPELLING DEFENDANT TO RESPOND TO REQUST FOR PRODUCTION OF DOCUMENTS, SET TWO AND SET THREE; REQUEST FOR MONETARY SANCTIONS; MEMORANDUM OF LAW; DECLARATION OF EVAN A. BLAIR, ESQ.; AND [PROPOSED] ORDER 14 15 16 19 20 21 22 23 24 25 26 27 28 the convenience of parties and witnesses and in the interests of justice. Lu v. Superior Court (1997) 55 Cal.App.4th 1264, 1269, which states that one of a discovery referee’s duties is to “work with the attorneys in developing a discovery plan, scheduling discovery in the most efficient, rational and least oppressive manner.” However, neither the Discovery Act nor Lu v. Superior Court gives the court or the special master wholesale powers to disregard a party’s right to discovery. Plaintiff attempted to meet and confer regarding previous discovery in October, November and December 2016. Plaintiff reached an agreement with defendant to provide plaintiff, first, in light of the fact plaintiff noticed defendant’s PMK depositions back in April 2016 but were met with objections and repeated objections in October and November 2016. Although plaintiff's deposition notices of defendant were first in time, plaintiff agreed to sit for defendant’s deposition first before defendant had provided any previous discovery and thee April 2016 noticed PMK deposition employee/party affiliated agents (all prior interrogatories and written discovery were sent with objections, no substantive responses and no verifications). Defendant was to perform by mid- December after plaintiffs sat for deposition on December 8, 2016. Defendants were non-responsive from that date onward in providing available dates and producing their PMKs by mid-December 2016 under the parties’ agreement. Plaintiff filed a motion to compel with the court to compel the 3 PMK depositions, an inspection and an employee waitress. During the pendency of that motion Defendant produced the PMKs and the waitress. However, when plaintiff took the motion off calendar defendant ignored the agreed to inspection date of 2/9/17 and filed a late objection. Defendant continues to violate CCP section 2023.010 et seq. and fails to meet and confer reasonably and in good faith pursuant to subdivision (i). B. CCP SECTION 2031.010 ET SEQ. GOVERNS THE RIGHT TO PROPOUND WRITTEN REQUESTS FOR PRODUCTION OF DOCUMENTS AND THINGS California Code of Civil Procedure section 2031.010, et seq., governs the use of requests for production of documents and things. Section 2031.010(a)-(e) state: “(a) Any party may obtain discovery within the scope delimited by Chapters 2 (commencing with Section 2017.010) and 3 (commencing with Section 2017.710), and subject to the restrictions set forth in Chapter 5 (commencing with Section 2019.010), by inspecting, copying, testing, or sampling documents, tangible things, land or other property, and electronically stored information in the possession, custody, or control of any other party to the action. 5 Te NOTICE OF MOTION AND MOTION FOR ORDER COMPELLING DEFENDANT TO RESPOND TO REQUST FOR PRODUCTION OF DOCUMENTS, SET TWO AND SET THREE; REQUEST FOR MONETARY SANCTIONS; MEMORANDUM OF LAW; DECLARATION OF EVAN A. BLAIR, ESQ.; AND [PROPOSED] ORDER 10 11] 12 18 19 20 21 22 23 24 25 27 28 (b) A party may demand that any other party produce and permit the party making the demand, or someone acting on that party's behalf, to inspect and to copy a document that is in the possession, custody, or control of the party on whom the demand is made. (c) A party may demand that any other party produce and permit the party making the demand, or someone acting on that party's behalf, to inspect and to photograph, test, or sample any tangible things that are in the possession, custody, or control of the party on whom the demand is made. (d) A party may demand that any other party allow the party making the demand, or someone acting on that party's behalf, to enter on any land or other property that is in the possession, custody, or control of the party on whom the demand is made, and to inspect and to measure, survey, photograph, test, or sample the land or other property, or any designated object or operation on it. (e) A party may demand that any other party produce and permit the party making the demand, or someone acting on that party's behalf, to inspect, copy, test, or sample electronically stored information in the possession, custody, or control of the party on whom demand is made.” CCP section 2031.030 (a)-(e) Further, California Code of Civil Procedure section 2031.030, et seq., governs the use of requests for production of documents and things. Section 2031.030(a) states: “Any party may obtain discovery . . . by inspecting, copying, testing, or sampling documents, tangible things, and land or other property, and electronically stored information in the possession, custody and control of any other party to the action.” CCP section 2031.030(a) In this case, Plaintiff propounded request for production of documents, Set. Two, propounded on December 8, 2016 and Plaintiff propounded request for production of documents, Set Three propounded on defendant on January 12, 2017. C. THIS MOTION TO COMPEL IS PROPER AND IS AUTHORIZED BY CALIFORNIA CODE OF CIVIL PROCEDURE SECTION 2031.300 ET SEQ. OR CODE OF CIVIL PROCEDURE SECTION 2031.310 ET SEQ. FOR A FURTHER RESPONSE Case law favors the right of a party to receive answers to interrogatories in order to gather relevant and possibly admissible information. Coy v. Superior Ct., (1962) 58 Cal.2d 210. -8- NOTICE OF MOTION AND MOTION FOR ORDER COMPELLING DEFENDANT TO RESPOND TO REQUST FOR PRODUCTION OF DOCUMENTS, SET TWO AND SET THREE; REQUEST FOR MONETARY SANCTIONS; MEMORANDUM OF LAW; DECLARATION OF EVAN A. BLAIR, ESQ.; AND [PROPOSED] ORDER 14 15 16 17 18 19 20 21 22 23 25 26 27 28 To enforce this right, the Court may issue an order compelling response when none has been provided. Code of Civil Procedure section 2031.300 ef seq. including section 2021.300(b) states: “If a party to whom a demand for inspection, copying, testing, or sampling is directed fails to serve a timely response to it, the following rules shall apply: ... (b) The party making the demand may move for an order compelling response to the demand.” Code of Civil Procedure section 2031.300 ef seq. Further, a motion to compel a further response, with inadequate compliance language and document or item status, withdraw an objection or objections is also warranted under CCP section 2031.310(a), as follows: “(a) On receipt of a response to a demand for inspection, copying, testing, or sampling, the demanding party may move for an order compelling further response to the demand if the demanding party deems that any of the following apply: (1) A statement of compliance with the demand is incomplete. (2) A representation of inability to comply is inadequate, incomplete, or evasive. (3) An objection in the response is without merit or too general.” CCP section 2031.310(a) (emphasis added) The defendant was provided an extension to respond to special interrogatories, set two and those defendant responses were served by defendant on January 17, 2017 via US mail which added five (5) days for mailing under CCP section 1013 et seq. (See, Blair decl.) Defendant’s responses were only objections with no verification. The objections and partial responses must be addressed including an impermissible incorporation by reference of a barely readable and IDENTIFICATION of employee witnesses that does not contain all identifying information about defendant’s employees necessary for an investigation regarding defendant’s food storage, preparation, cooking, service, policies procedures and practices at the restaurant in those areas as well as the history of the kitchen appliances for maintenance, inspection, repair and purchase, that were where the potato side-dish was prepared. £0 NOTICE OF MOTION AND MOTION FOR ORDER COMPELLING DEFENDANT TO RESPOND TO REQUST FOR PRODUCTION OF DOCUMENTS, SET TWO AND SET THREE; REQUEST FOR MONETARY SANCTIONS; MEMORANDUM OF LAW; DECLARATION OF EVAN A. BLAIR, ESQ.; AND [PROPOSED] ORDER 12 13 14 15 20 21 22 23 24 25 26 27 28 Further, defendant’s responses to plaintiff's Request for Production of Documents, set two, were served on February 17, 2017. Plaintiff's meet and confer efforts are contained within Exhibit 1, Exhibit 2, Exhibit 3 and Exhibit 4 for the Request for Production of Documents, set two and set three (Blair, esq. decl., at par 12-16, 18-21). Defendant must provide original verified responses that are full and complete in light of definitions provided by plaintiff in the requests for production (see, plaintiff's separate statement filed concurrently pursuant to California Rule of Court 3.1345). The employees sought are for the day before, of and after the 12/15/13 incident. The “hands on” cooks have been provided or identified. The Weekly Schedule provided is difficult to read and lacks all the specificity of the defined term, “IDENTIFY” or “IDENTITIES” which include all names used, address and telephone numbers of these “witnesses” necessary for investigation. Plaintiff is entitled to contact employees and most importantly the food handler employees (cooks or chefs) by speaking with all the employees that worked at the Orange Marie Callender’s in the year prior to the incident and year after the incident and determine the food handling practices in preparation in actual practice versus an ideal scenario that is “by the book” when it comes to food preparation and handling practices in actuality rather than in theory. What is ordinary and customary related to food preparation, cooking, heating, by the chefs and cooks may not be what is actually going on during the stated time window. The “hands on” cooks and chefs are necessary. The individuals that actual prepare and cooked food must be communicated with and as that pertains to the preparation of the Chicken Dinner Meal Plate recipe and any variations or deviations from the ideal preparation of that recipe which contains the microwaved then deep fried, then apparently, basted (in a sauce in a non-produced sub-recipe document), side-dish of baby potatoes that injured plaintiff. Plaintiff should not be limited by the specific PMKs that defendant selects who were employees in management from the restaurant. To date plaintiff has no “hands on” cooks or chefs. Plaintiff does not want the defendant’s “hand-picked” cook or chef among a few that worked at the location from one year before through one year after the incident as sought in plaintiff's request for production of documents set two and set three. Defendant’s “set four” responses (Exhibit 9a, Exhibit 9 b, Exhibit 10a and Exhibit 10b) which are not at issue, address the sub-recipes within the general meal recipe for the chicken dinner meal at issue. -10- NOTICE OF MOTION AND MOTION FOR ORDER COMPELLING DEFENDANT TO RESPOND TO REQUST FOR PRODUCTION OF DOCUMENTS, SET TWO AND SET THREE; REQUEST FOR MONETARY SANCTIONS; MEMORANDUM OF LAW; DECLARATION OF EVAN A. BLAIR, ESQ.; AND [PROPOSED] ORDER 11 12 13 14 15 20 21 22 23 24 25 26 27 28 Plaintiff has not been able to independently investigate those that worked at the specific Orange Marie Calendar’s location including confirming each employees’ work functions, duties versus job titles and how job title varies from work functions. Further, the food preparing defendant employee/agents must be identified. They may not be controlled as potential witnesses in this case to serve defendant's benefit, whether they have left the employ of defendant or are not high ranking officers, directors or “managing agents.” “The corporation cannot bring former employees back into the fold for purposes of a lawsuit merely because there is a risk that the former employee might disclose unfavorable facts.” Continental Ins. Co. v. Superior Court (1995) 32 Cal. App.4th 94, 117. Not all current or former employee/agents of a business are intimidated or concerned about a current or former employer when speaking their mind regarding percipient facts about the business operation. All objections must be withdrawn. D. MONETARY SANCTIONS ARE APPROPRIATE AGAINST DEFENDANT, MARIE CALLENDER’S, INC. AND THEIR COUNSEL OF RECORD AS IDENTIFIED IN THE NOTICE OF MOTION PURSUANT TO CCP SECTION 2031.300 ET SEQ. AND CCP SECTION 2031.310 ET SEQ. Because Defendant has completely failed or refused to respond to properly propounded discovery, thus forcing Plaintiff to bring this Motion, monetary sanctions against Defendant are appropriate. As to a failure to serve a timely response, under CCP section 2031.300 et seq. the following rules apply: “(c) Except as provided in subdivision (d), the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to a demand for inspection, copying, testing, or sampling, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. If a party then fails to obey the order compelling a response, the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under Chapter 7 (commencing with Section 2023.010). In lieu of or in addition to this sanction, the court may impose a monetary sanction under Chapter 7 (commencing with Section 2023.010).” CCP section 2031.300(c) (emphasis added) -11 - NOTICE OF MOTION AND MOTION FOR ORDER COMPELLING DEFENDANT TO RESPOND TO REQUST FOR PRODUCTION OF DOCUMENTS, SET TWO AND SET THREE; REQUEST FOR MONETARY SANCTIONS: MEMORANDUM OF LAW; DECLARATION OF EVAN A. BLAIR, ESQ.; AND [PROPOSED] ORDER 11 12 13 14 15 16 20 21 22 23 24 25 27 28 As to an inadequate response that seeks a further response and withdrawal of objections by the responding party the following rules apply: “(h) Except as provided in subdivision (j), the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further response to a demand, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” CCP section 2031.310(h) (emphasis addedQ Monetary sanctions are appropriate against defendant and their counsel as identified in the attached and served notice of motion (CCP section 2023.040) pursuant to all of CCP section 2023.010 -- 2032.040 (Blair, Esq. decl., par. 27) Plaintiff seeks monetary sanctions of $2,160 for each motion to compel. Two motions to compel were filed. Hence plaintiff seeks $4,320 total for both motions to compel. E. MONETARY SANCTIONS ARE APPROPRIATE AGAINST DEFENDANT, MARIE CALLENDER’S, INC. AND THEIR COUNSEL OF RECORD AS IDENTIFIED IN THE NOTICE OF MOTION PURSUANT TO CCP SECTION 2023.010 FOR DISCOVERY MISUSE Code of Civil Procedure section 2023.010 provides, in part: “(a) The court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process... pay reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct... If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction unless it finds that the one subject to sanctions acted with substantial justification or that other circumstances make the imposition of sanctions unjust.” = 13s NOTICE OF MOTION AND MOTION FOR ORDER COMPELLING DEFENDANT TO RESPOND TO REQUST FOR PRODUCTION OF DOCUMENTS, SET TWO AND SET THREE; REQUEST FOR MONETARY SANCTIONS: MEMORANDUM OF LAW: DECLARATION OF EVAN A. BLAIR, ESQ.; AND [PROPOSED] ORDER 10 11 12 13 17 18 19 20 21 22 23 24 25 26 27 28 Further, under CCP section 2023.010 et seq., the, (c) Employing a discovery method in a manner or to an extent that causes unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. 2023.010(c) .. .“Failing to respond or to submit to an authorized method of discovery” is an example of misuse of the discovery process. Code of Civil Procedure section 2023.010(d) . .. “Making, without substantial justification, an unmeritorious objection to discovery.”2023.010(e) . . . . “Making an evasive response to discovery.” 2023.010(f) ....”Making or opposing, unsuccessfully and without substantial justification, a motion to compel or to limit discovery.” 2023.010(h) Discovery misuse is present under CCP section 2023.010 ef seq. Requests for production of documents and things are an authorized form of discovery, to which Defendant has failed to respond. Defendant cannot show substantial justification for her failure to respond and only include objections and no verification whatsoever. Therefore, the imposition of monetary sanctions against Defendant is required. Accordingly, Plaintiff hereby requests that the court impose monetary sanctions in the amount of $2.160 for plaintiff’s motion to compel further responses as to plaintiff's Requests for Production of Documents , set two and set three, in order that Plaintiff may recover the cost and fees incurred in having to prepare this motion and an additional $2,160 for the concurrently filed motion relating to request for further responses to Special Interrogatories, set two and set three. $2,160 is sought for each of the two motions. Hence a total of $4,320 is sought for both motions (See, Blair, Esq., decl., par 27). HI. CONCLUSION Based upon the foregoing facts and law, Plaintiff respectfully requests the following: 1. An Order that Defendant PERKINS & MARIE CALENDAR’S, INC. DBA MARIE CALENDAR'’S provide written, full and complete, verified responses, with a complete “statement of compliance,” an adequate and complete “representation of inability to comply,” without objections, in full compliance with CCP section 2031.010(a) (1)-(3), to Plaintiff’s request for production of documents, set two, Set. No.2, within 10 days of the granting of this Motion; -13- NOTICE OF MOTION AND MOTION FOR ORDER COMPELLING DEFENDANT TO RESPOND TO REQUST FOR PRODUCTION OF DOCUMENTS, SET TWO AND SET THREE; REQUEST FOR MONETARY SANCTIONS; MEMORANDUM OF LAW; DECLARATION OF EVAN A. BLAIR, ESQ.; AND [PROPOSED] ORDER 19 20 21 22 23 24 25 26 27 28 2. An Order that Defendant PERKINS & MARIE CALENDAR'’S, INC. DBA MARIE CALENDAR'’S provide written, full and complete, verified responses, with a complete “statement of compliance,” an adequate and complete “representation of inability to comply,” without objections, in full compliance with CCP section 2031.010(a) (1)-(3), to Plaintiff's request for production of documents, set two, Set. No.3, within 10 days of the granting of this Motion; 3. An Order that Defendant, PERKINS & MARIE CALENDAR’S, INC. DBA MARIE CALENDAR’S, defendant’s attorney, Marissa Gittler, Esq., and law firm, Manning & Kass, Ellrod, Ramirez, Trester, LLP, all jointly and severely pay Plaintiff and plaintiff’s counsel, monetary sanctions in the amount of $2,160, the reasonable costs and fees incurred in having to bring this particular motion, within 10 days of the granting of this motion. Plaintiff again informs that court that defendant’s responses to Request for Production of Documents, set 4 related to “sub-recipes” contained with the 2/1/17 PMK produced general chicken dinner plate “recipe”, but not the subject of the two motions concurrently filed, also lacked verifications and were riddled with objections only and signed by counsel in this pattern and practice of willful discovery misuse for purposes of delay, burden, harassment and oppression of plaintiff and plaintiff's counsel. Further, depositions noticed in early February 2017 have yet to occur because defendant has again, much like in the fall of 2016, not provided future dates after informing plaintiff that defendant and counsel were both unavailable. This discovery disregard and misuse must be deterred in the future. Respectfully submitted. Dated: March 10, 2017 LAW OFFICE OF GENE J. GOLDSMAN Gene J. Goldsman, Esq. Evan A. Blair, Esq. Fernando Brito, Jr., Esq. Attorney for Plaintiffs, ANNALEE MATHIS and MICHAEL MATHIS SH NOTICE OF MOTION AND MOTION FOR ORDER COMPELLING DEFENDANT TO RESPOND TO REQUST FOR PRODUCTION OF DOCUMENTS, SET TWO AND SET THREE; REQUEST FOR MONETARY SANCTIONS; MEMORANDUM OF LAW; DECLARATION OF EVAN A. BLAIR, ESQ.;: AND [PROPOSED] ORDER 12 13 14 15 16 17 20 21 22 23 24 25 26 27 28 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE ~ CENTRAL JUSTICE CENTER ANNALEE MATHIS; and MICHAEL MAT} Case No.: 30-2015-00824878 Assigned : Hon. David R. Chaffee Plaintiffs, Dept.: C20 V. [PROPOSED] ORDER PERKINS & MARIE CALLENDER’S, LLC DOES 1 to 100, Date: April 7, 2017 Time: 9:30 a.m. Dept.: C20 Defendants. TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD: Plaintiff, ANNALEE MATHIS’ (“plaintiff”) Motion for Order Compelling Defendant PERKINS & MARIE CALLENDER’S, INC. DBA MARIE CALLNDER'’S (“defendant”) to Respond to Request For Production of Documents, Set Two and Request For Production of Documents, Set Three, and Request for Monetary Sanctions came on regularly for hearing on April 7, 2017 at 9:30 a.m. in Dept. C20 before THE COURT. Based upon this Notice of Motion, the attached Memorandum of Points and Authorities, the Declaration of Evan A. Blair, Esq., and Attached Exhibits and Volumes; Plaintiff’s concurrently filed Separate Statement pursuant to California Rule of Court 3.1345 et seq.; the court file and records in -15- NOTICE OF MOTION AND MOTION FOR ORDER COMPELLING DEFENDANT TO RESPOND TO REQUST FOR PRODUCTION OF DOCUMENTS, SET TWO AND SET THREE; REQUEST FOR MONETARY SANCTIONS; MEMORANDUM OF LAW; DECLARATION OF EVAN A. BLAIR, ESQ.; AND [PROPOSED] ORDER 11 12 13 14 15 20 21 22 23 24 25 26 28 this action; the plaintiff's concurrently filed, Notice of Motion, Memorandum of Points and Authorities on plaintiff’s motion to compel original verified and/or in the alternative, further responses to plaintiff's special interrogatories, set two and special interrogatories, set three; the Declaration of Evan A. Blair, Esq. and Attached Exhibits filed with the court on January 6, 2017 and Declaration of Evan A. Blair, Esq. and Attached Exhibits filed with the court on or about February 14, 2017; and such further oral and documentary evidence as may be presented at the hearing of the Motion: WITH GOOD CAUSE SHOWN, IT IS HEREBY ORDERED THAT: 1. Defendant PERKINS & MARIE CALENDAR’S, INC. DBA MARIE CALENDAR’S is ordered to provide written, full and complete, verified responses, with a complete “statement of compliance,” an adequate and complete “representation of inability to comply,” without objections, in full compliance with Code of Civil Procedure section 2031.010(a) (1)~(3), to Plaintiff's request for production of documents, set two, Set. No.2, within 10 days of the granting of this Motion; 2. Defendant PERKINS & MARIE CALENDAR’S, INC. DBA MARIE CALENDAR'’S is ordered to provide written, full and complete, verified responses, with a complete “statement of compliance,” an adequate and complete “representation of inability to comply,” without objections, in full compliance with Code of Civil Procedure section 2031.010(a) (1)~(3), to Plaintiff’s request for production of documents, set two, Set. No.3, within 10 days of the granting of this Motion; 3. Defendant, PERKINS & MARIE CALENDAR'’S, INC. DBA MARIE CALENDAR’S, defendant’s attorney, Marissa Gittler, Esq., and law firm, Manning & Kass, Ellrod, Ramirez, Trester, LLP, all jointly and severely, are ordered to pay Plaintiff and plaintiff's counsel, monetary sanctions in the amount of $2,160, the reasonable costs and fees incurred in having to bring this particular motion, within 10 days of the granting of this motion. IT IS SO ORDERED Dated: Hon. David R. Chaffee -16- NOTICE OF MOTION AND MOTION FOR ORDER COMPELLING DEFENDANT TO RESPOND TO REQUST FOR PRODUCTION OF DOCUMENTS, SET TWO AND SET THREE; REQUEST FOR MONETARY SANCTIONS; MEMORANDUM OF LAW; DECLARATION OF EVAN A. BLAIR, ESQ.; AND [PROPOSED] ORDER 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF ORANGE I am employed in the County of Orange, State of California. Iam over the age of 18 and am not a party to the within action. My business address is 501 W. Civic Center Drive, Santa Ana, CA 92701. On March 10, 2017, I served the within document(s) described as: PLAINTIFF, ANALEE MATHIS’ NOTICE OF MOTION AND MOTION TO COMPEL ORIGINAL VERIFIED RESPONSES AND FURTHER RESPONSES TO PLAINTIFF’S PROPOUNDED, REQUEST FOR PRODUCTION OF DOCUMENTS, SET TWQ; AND REQUEST FOR PRODUCTION OF DOCUMENTS, SET THREE AGAINST DEFENDANT, PERKINS & MARIE CALLENDER’S, INC.; MEMORANDUM OF POINTS & AUTHORITIES; MONETARY SANCTIONS AGAINST DEFENDANT AND THEIR ATTORNEY OF RECORD FOR $2,160; AND [PROPOSED] ORDER [CALIFORNIA RULE OF COURT 3.1345 et seq.] on the interested parties in this action addressed as follows: Marissa K. Gittler, Esq. Manning & Kass, et al. 801 S. Figueroa St., 15" Floor Los Angeles, CA 90017 [] By Mail - Iam “readily familiar” with the firm office’s business practice and procedures of collection and processing correspondence for mailing. Under the practice it would be deposited with the U.S. Postal Service on the same day with postage thereon fully prepaid at Santa Ana, California in the ordinary course of business. I deposited such envelope containing the document(s) in the mail at Santa Ana, California pursuant to this law office’s business practices and procedures. To the best of my knowledge I have followed these regular mail practices and procedures on the date herein. The envelope was mailed with postage thereon fully repaid. Kd By Overnight Courier - I caused such envelope to be deposited in the courier dropbox at Santa Ana, California. The envelope was delivered with postage thereon fully prepaid. [] By Fax - I faxed such document from fax number (714) 541-0456 to the fax numbers listed by each recipient. The facsimile machine I used complied with Rule 2003(3) and no error was reported by the machine. Pursuant to Rule 2005(I), a record of the transmission was printed. = State - I certify (or declare) under penalty of perjury under the laws of the State of California, that the foregoing is true and correct. 1] Federal - I declare that I am employed in the office of a member of the bar of this court at whose direction the service was made, and I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct. Executed on March 10, 2017, at Santa Ana, California. Rfid Jon B. Enriquez (n / / 7 ; ; ; ¥ Print Name /" S ignature ’ «ff NOTICE OF MOTION AND MOTION FOR ORDER COMPELLING DEFENDANT TO RESPOND TO REQUST FOR PRODUCTION OF DOCUMENTS, SET TWO AND SET THREE; REQUEST FOR MONETARY SANCTIONS: MEMORANDUM OF LAW: DECLARATION OF EVAN A. BLAIR, ESQ.; AND [PROPOSED] ORDER